Daniel Mosley — Cross/Redirect (Continued)
2,070 linesCROSS-EXAMINATION (RESUMED) BY MR. WADE:
DANIEL MOSLEY: I UNDERSTAND.
MR. WADE: I'D LIKE TO PICK UP YOUR CALL AT THE BEGINNING OF CROSS-EXAMINATION YESTERDAY. I ASKED YOU SOME QUESTIONS ABOUT SOME OF YOUR CLIENTS. DO YOU RECALL THAT?
DANIEL MOSLEY: I'M NOT SURE WHAT YOU'RE ASKING.
MR. WADE: DO YOU RECALL WHEN I WAS ASKING YOU QUESTIONS ABOUT THE WALTON FAMILY AND SOME OF THE OTHER FAMILIES THAT YOU DID WORK FOR IN CONNECTION WITH THERANOS?
DANIEL MOSLEY: YES, YOU WERE ASKING ME AND I SAID CLIENTS I INTRODUCED. I DIDN'T NECESSARILY DO WORK FOR THOSE CLIENTS IN CONNECTION WITH THERANOS.
DANIEL MOSLEY: I DO RECALL THOSE QUESTIONS.
MR. WADE: AND DO YOU RECALL THAT YOU, YOU -- I BELIEVE YOU DIDN'T RECALL FOR SURE WHETHER YOU REPRESENTED THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: I SAID I DON'T REMEMBER SPECIFICALLY. CERTAINLY ANDREAS DRACOPOULOS WAS A CLIENT OF MINE AND I GAVE HIM A BROAD RANGE OF ADVICE, PROBABLY IN MATTERS AFFECTING THE FOUNDATION SINCE HE WAS THE PRESIDENT OR CO-PRESIDENT OF THE FOUNDATION.
MR. WADE: OKAY. COULD I HAVE YOU JUST LOOK IN YOUR BINDER AT TRIAL EXHIBIT 4801? AND IT'S A LEGAL DOCUMENT, A LEGAL SIZE DOCUMENT, SO IT SHOULD BE EASY TO FIND IN THAT BINDER.
DANIEL MOSLEY: I SEE IT.
DANIEL MOSLEY: I DO.
MR. WADE: AND COULD YOU JUST TAKE A MINUTE AND REVIEW THE FIRST COUPLE OF PAGES AND SEE IF THAT REFRESHES YOUR RECOLLECTION THAT YOU PROVIDED LEGAL SERVICES TO THE NIARCHOS FOUNDATION AS WELL?
(PAUSE IN PROCEEDINGS.)
BY MR. WADE:
MR. WADE: AND IN PARTICULAR, MR. MOSLEY, IF YOU COULD LOOK AT ENTRIES, FOR EXAMPLE, 18, 13, 14, 15, THAT MIGHT BE HELPFUL.
DANIEL MOSLEY: OKAY.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: I'VE READ THOSE. IT WAS A RATHER LONG DOCUMENT.
BY MR. WADE:
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: YES, I HAVE.
MR. WADE: AND DOES THAT REFRESH YOUR RECOLLECTION THAT YOU HAD PRIVILEGED COMMUNICATIONS WITH THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: IT DOES NOT BECAUSE NOTHING ON HERE REFERS TO THE NIARCHOS FOUNDATION AND, YOU KNOW, A NUMBER OF THE THINGS REFER TO EMAILS AND THE EMAIL ADDRESS OF ANDREAS DRACOPOULOS. I DON'T SEE ANY -- I GUESS I SEE A REFERENCE TO A FELLOW BY THE NAME OF VASILI TSAMIS WHO DOES WORK AT THE NIARCHOS FOUNDATION, BUT I DON'T SEE ANYTHING MORE SPECIFIC THAN THAT. IS THERE SOMETHING THAT I'M MISSING?
MR. WADE: WELL, DO YOU RECALL THAT YOU TOOK A TRIP WITH MEMBERS OF THE NIARCHOS FOUNDATION TO THERANOS?
DANIEL MOSLEY: YES, I DID.
MR. WADE: AND DO YOU RECALL FROM REVIEWING THIS DOCUMENT THAT YOU COMMUNICATED WITH SEVERAL MEMBERS OF THE NIARCHOS FOUNDATION IN CONNECTION WITH THERANOS WORK?
DANIEL MOSLEY: AS I SAID, I INTRODUCED -- ACTUALLY, I THINK IF YOU GO BACK AND THE LETTER THAT YOU SHOWED ME LAST -- YESTERDAY, DR. KISSINGER CONTACTED ANDREAS DRACOPOULOS AND THE NIARCHOS FOUNDATION, AND I CERTAINLY INTRODUCED THEM TO ELIZABETH, AND I CERTAINLY DID TAKE A TRIP WITH TWO MEMBERS FROM THE FOUNDATION OUT TO SEE THERANOS WITH THEM AS PART OF AN INTRODUCTION.
MR. WADE: AND DO YOU RECALL THAT YOU'VE, YOU'VE ASSERTED PRIVILEGE OVER MANY COMMUNICATIONS WITH MEMBERS OF THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: I'M -- YOU KNOW, I DID NOT HANDLE THIS DOCUMENT DISCOVERY, SO I DIDN'T -- MAYBE PRIVILEGE WAS ASSERTED ON MY BEHALF BY MY ATTORNEYS, BUT THAT'S NOT SOMETHING THAT I PERSONALLY DID.
MR. WADE: OKAY. SO AS YOU SIT HERE TODAY, DO YOU HAVE A VIEW ONE WAY OR THE OTHER WHETHER YOU REPRESENTED THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: AS I SAID, I REALLY DON'T HAVE ANY RECOLLECTION OF REPRESENTING THE NIARCHOS FOUNDATION. I HAD -- AS I SAID, ANDREAS DRACOPOULOS, WHO IS THE CO-PRESIDENT OF THE NIARCHOS FOUNDATION, WAS A CLIENT OF MINE, AND I CERTAINLY HAD A LOT OF COMMUNICATIONS WITH ANDREAS AS PART OF HIS BEING INTRODUCED. AND AS PART OF THE NIARCHOS FOUNDATION, I DID TAKE A TRIP WITH THEM, AND OBVIOUSLY ON THAT TRIP I DID HAVE CONVERSATIONS WITH HIM. BUT I DID NOT VIEW MYSELF AS REPRESENTING THE NIARCHOS FOUNDATION.
MR. WADE: OKAY. THE -- WE TALKED A LITTLE BIT YESTERDAY ABOUT THE COX -- YOUR REPRESENTATION OF THE COX FAMILY. DO YOU RECALL THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND I DON'T BELIEVE I ASKED YOU, BUT DID -- YOU CAME TO LEARN THAT THEY INVESTED $100 MILLION IN THERANOS?
DANIEL MOSLEY: I DID COME AT SOME POINT TO LEARN THAT THEY INVESTED 100 MILLION. IT'S THE NUMBER THAT I WAS TOLD.
DANIEL MOSLEY: I WASN'T PERSONALLY INVOLVED, SO I DON'T KNOW -- I HAVEN'T SEEN EVIDENCE SPECIFICALLY TO THAT, BUT THAT IS THE NUMBER THAT I UNDERSTAND.
MR. WADE: OKAY. AND I THINK YOU GAVE SOME TESTIMONY YESTERDAY WITH RESPECT TO SOME COMMUNICATIONS THAT YOU HAD WITH MEMBERS OF THE OPPENHEIMER FAMILY. DO YOU RECALL THAT?
DANIEL MOSLEY: YES. I -- NO, I DON'T THINK WE TALKED ABOUT THAT.
MR. WADE: OKAY. DO YOU RECALL YOU HAD SOME COMMUNICATIONS WITH REPRESENTATIVES OF THE OPPENHEIMER FAMILY?
DANIEL MOSLEY: I DID HAVE SOME COMMUNICATIONS, YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, HE WAS.
DANIEL MOSLEY: YOU KNOW, I WASN'T INVOLVED IN HOW MUCH THEY INVESTED, BUT I WAS TOLD THAT THEY INVESTED 20 MILLION.
MR. WADE: OKAY. I'D LIKE TO USE A DEMONSTRATIVE. I'LL PASS IT UP TO THE COURT. THE COURT'S INDULGENCE FOR ONE MOMENT?
JUDGE DAVILA: SURE.
(DISCUSSION OFF THE RECORD AMONGST COUNSEL FOR THE GOVERNMENT AND DEFENSE.)
MR. WADE: YOUR HONOR, I'VE PASSED UP A DEMONSTRATIVE. I WOULD JUST NOTE WITH RESPECT TO ONE OF THE ENTRIES WITH RESPECT TO THE NIARCHOS FOUNDATION, WE'RE GOING TO REMOVE THE ENTRY WITH RESPECT TO ATTORNEY THERE. AND THEN I WOULD ASK TO DISPLAY THIS.
JUDGE DAVILA: DO YOU HAVE A COPY OF THIS, MR. SCHENK?
MR. SCHENK: YES.
JUDGE DAVILA: OKAY.
MR. WADE: JUST AS A DEMONSTRATIVE. I WOULD DO THIS ON A FLIP CHART, BUT WE DON'T SEEM TO HAVE THE SPACE FOR THIS.
JUDGE DAVILA: OKAY. THAT'S FINE. THANK YOU.
BY MR. WADE:
MR. WADE: AND DO YOU SEE THIS CHART IS A SUMMARY OF SOME OF THE, SOME OF THE FAMILIES THAT WE TALKED ABOUT AND YOUR RELATIONSHIPS WITH THOSE FAMILIES? DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND I CHANGED THE NIARCHOS FOUNDATION ENTRY, BUT THAT WOULD BE A FRIEND OF DR. KISSINGER AS WELL?
DANIEL MOSLEY: A FOUNDATION BEING A FRIEND OF SOMEBODY'S? IT WAS SOMEBODY THAT HE WAS AWARE OF AND INTRODUCED ELIZABETH AND THERANOS TO.
MR. WADE: FAIR ENOUGH. AND WITH RESPECT TO, WITH RESPECT TO THOSE -- THESE FAMILIES WHERE YOU HAD AN ATTORNEY-CLIENT RELATIONSHIP, DO YOU RECALL THAT AT DIFFERENT POINTS THROUGHOUT THE FALL YOU HAD COMMUNICATIONS WITH THEM ABOUT THERANOS MATTERS THAT WERE PRIVILEGED?
MR. SCHENK: OBJECTION. RELEVANCE.
JUDGE DAVILA: SUSTAINED AS TO THE FORM OF THE QUESTION. YOU CAN REASK IT.
BY MR. WADE:
MR. WADE: DO YOU RECALL THAT YOU HAD COMMUNICATIONS WITH THE CLIENTS WHO YOU REPRESENTED HERE WITH RESPECT TO THERANOS?
DANIEL MOSLEY: SOME, SOME OF THESE. I MEAN, THERE ARE SOME THAT I NEVER HAD A CONVERSATION ABOUT THERANOS WITH. BUT SOME OF THESE INDIVIDUALS I DID HAVE CONVERSATIONS WITH.
MR. WADE: OKAY. AND, FOR EXAMPLE, AND WE'LL GO THROUGH SOME OF THE COMMUNICATIONS, BUT YOU HAD COMMUNICATIONS WITH MR. PENNER, MR. WALTON, AND MRS. WALTON?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: NO.
MR. WADE: NOT PRIVILEGED COMMUNICATIONS, YOU HAD COMMUNICATIONS WITH MEMBERS OF THE NIARCHOS FOUNDATION OR ITS CO-PRESIDENT?
DANIEL MOSLEY: THE CO-PRESIDENT IS ANDREAS DRACOPOULOS, SO, YES, I DID HAVE CONVERSATIONS WITH HIM.
DANIEL MOSLEY: AND I DON'T SPECIFICALLY RECALL, BUT I WOULD SUSPECT THAT I HAD COMMUNICATIONS WITH ONE OR MORE INDIVIDUALS AT -- BECAUSE I TOOK A TRIP WITH THEM, AS YOU KNOW.
MR. WADE: OKAY. AND YOU RECALL THAT YOU HAD SOME COMMUNICATIONS WITH A REPRESENTATIVE, MR. ELKANN?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: I DON'T REMEMBER, BUT THAT SOUNDS LIKE THAT'S PROBABLY RIGHT.
DANIEL MOSLEY: I HAVE IT.
MR. WADE: OKAY. AND DO YOU RECOGNIZE THIS TO BE AN EMAIL BETWEEN, AMONG OTHERS, YOU AND MS. HOLMES RELATING TO THERANOS MATTERS?
DANIEL MOSLEY: THERE ARE ONE -- THERE ARE AT LEAST THREE, FOUR, FIVE EMAILS HERE. ARE WE TALKING ABOUT THE TOP ONE?
DANIEL MOSLEY: I DO.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14118 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
MR. WADE: IF WE CAN GO TO THE SECOND -- WELL, LET'S GO TO THE BOTTOM OF THE FIRST PAGE FOR A SECOND. DO YOU SEE THE LAST ENTRY ON THE BOTTOM OF THE FIRST PAGE INDICATES THAT THE EMAIL THAT FOLLOWS IS FROM MS. HOLMES? DO YOU SEE THAT?
DANIEL MOSLEY: THE ONE AUGUST THE 20TH?
DANIEL MOSLEY: THE ONE FROM ME DATED ALSO AUGUST THE 20TH.
MR. WADE: I'M SORRY. I'M PROBABLY NOT PROVIDING CLARITY FOR YOU HERE. DO YOU HAVE 14118 IN FRONT OF YOU?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: OH, THE ONE THAT SAYS FROM MS. HOLMES?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: I DO.
MR. WADE: AND LET'S LOOK AT THAT EMAIL. DO YOU RECALL YESTERDAY THAT YOU SAID YOU HAD A CONVERSATION WITH MS. HOLMES ON JULY 21ST I BELIEVE IT WAS INITIALLY. DO YOU RECALL THAT?
DANIEL MOSLEY: WHAT I RECALL IS THAT YOU SHOWED ME A MESSAGE SLIP THAT SHE HAD CALLED ME ON A PARTICULAR DAY AND SAID -- LEFT HER NUMBER AND SAID, PLEASE LET'S TALK ON MONDAY. AND I TOLD YOU I DIDN'T REMEMBER WHETHER WE ACTUALLY SPOKE ON MONDAY OR NOT.
MR. WADE: YEAH. FAIR ENOUGH. I BELIEVE WE WERE ASKING AT THAT POINT ABOUT THE SECOND CALL. BUT DO YOU RECALL THAT THERE WAS AN INTRODUCTORY CALL BEFORE THAT ON JULY 21ST, YOUR FIRST CALL WITH HER?
DANIEL MOSLEY: I DON'T REMEMBER THE EXACT DATE, BUT, YES, I DID HAVE A CALL SOMETIME AFTER DR. KISSINGER HAD INTRODUCED ME TO ELIZABETH, YES.
MR. WADE: AND THEN THERE WAS SOME COMMUNICATIONS ABOUT WAL-MART, OR ABOUT THE WALTON FAMILY AFTER THAT. DO YOU RECALL THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND THEN WE WERE TRYING TO FIGURE OUT, I THINK WHEN WE LEFT OFF OUR TESTIMONY, WHEN THE NEXT CONVERSATION WAS. DO YOU RECALL THAT? AND I SHOWED YOU THAT MESSAGE.
DANIEL MOSLEY: YOU SHOWED ME THE NEXT MESSAGE, YES.
MR. WADE: AND LET'S LOOK AND SEE. THIS WAS AN EMAIL FROM MS. HOLMES TO YOU ON AUGUST 19TH, IN WHICH SHE SAYS IT WAS GREAT TO CONNECT YESTERDAY. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I TYPICALLY REFER IT TO AS AN NDA, A NONDISCLOSURE AGREEMENT, AND CDA I THINK IT STANDS FOR THE SAME THING, A CONFIDENTIAL DISCLOSURE AGREEMENT. AND IT MERELY IS A DOCUMENT THAT SAYS WE'RE GOING TO GIVE YOU INFORMATION THAT WE DON'T WANT YOU TO DISCLOSE TO OTHER PEOPLE, AND BY GETTING THIS INFORMATION YOU AGREE YOU WILL KEEP IT CONFIDENTIAL AND NOT GIVE IT TO ANYONE WITHOUT OUR CONSENT.
MR. WADE: AND IN THE CORPORATE LEGAL WORLD, PRIVATE CLIENT WORLD IN WHICH YOU'VE WORKED FOR DECADES, THESE ARE PRETTY COMMON; RIGHT?
DANIEL MOSLEY: I DON'T KNOW IF YOU WOULD SAY THEY'RE COMMON IN MY PRACTICE, BUT THEY'RE COMMON WHEN YOU'RE DEALING WITH A COMPANY. INDIVIDUALS DON'T TYPICALLY HAVE THESE AGREEMENTS, BUT WHEN YOU'RE DEALING WITH A COMPANY THAT HAS CONFIDENTIAL INFORMATION THAT THEY DON'T WANT TO BE PUBLIC, IT IS VERY COMMON TO BE ASKED TO SIGN AN NDA OR, IN THIS CASE, A CDA.
MR. WADE: OKAY. AND DOES THIS EMAIL REFRESH YOUR RECOLLECTION THAT IN ABOUT THIS TIMEFRAME YOU HAD ANOTHER CALL WITH MS. HOLMES?
DANIEL MOSLEY: YOU KNOW, I -- SEVEN YEARS AGO, I CAN'T REMEMBER EXACTLY EVERY CALL I HAD AND EXACTLY WHAT TIME. BUT IT CERTAINLY IS AN INDICATION THAT I SPOKE WITH ELIZABETH ON THE DAY BEFORE, WHICH WOULD HAVE BEEN AUGUST THE 18TH.
MR. WADE: OKAY. AND LET'S LOOK AT THE NEXT EMAIL UP THE CHAIN, WHICH IS AN EMAIL FROM YOU. AND I THINK IT'S FAIR TO SAY THAT'S CONSISTENT WITH THAT UNDERSTANDING; IS THAT RIGHT? AS TO THE TIMING OF THE CONVERSATION?
DANIEL MOSLEY: YES, IT IS.
MR. WADE: OKAY. AND HERE YOU NOTE THAT YOU FULLY UNDERSTAND THE IMPORTANCE OF THE CONFIDENTIAL DISCLOSURE AGREEMENT; RIGHT?
DANIEL MOSLEY: ABSOLUTELY. I THINK WHAT I'M SAYING HERE IS THAT I WILL NOT DISCLOSE ANY INFORMATION THAT I HAVE GOTTEN FROM THERANOS OR FROM ELIZABETH TO ANY OF THESE OTHER PARTIES THAT MIGHT HAVE AN INTEREST IN THE COMPANY UNTIL THEY HAVE SIGNED THEIR OWN CONFIDENTIAL DISCLOSURE AGREEMENT. I'M CARRYING OUT MY OBLIGATIONS.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: SUFFICIENTLY SO. I OBVIOUSLY READ ONE AND SIGNED ONE PERSONALLY.
DANIEL MOSLEY: I DID WRITE THAT, YES.
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. YOU SEE YOU THEN SAID THAT YOU WILL WORK TO GET IT SIGNED BY THE FOUNDATION. DO YOU SEE THAT?
DANIEL MOSLEY: I SAID I WILL PROCEED TO GET IT SIGNED.
DANIEL MOSLEY: NOT SPECIFICALLY, BUT I BELIEVE IT HAPPENED BECAUSE I WOULD NOT HAVE HAD ANY CONVERSATION WITH THE FOUNDATION ABOUT THERANOS AND ANY OF ITS INFORMATION UNTIL THEY HAD SIGNED IT.
MR. WADE: RIGHT. AND YOU KNOW THAT YOU DID HAVE THOSE CONVERSATIONS, SO YOU ASSUMED IT PROBABLY GOT SIGNED; CORRECT?
DANIEL MOSLEY: EXACTLY.
MR. WADE: OKAY. AND IF WE LOOK AT THE NEXT LINE HERE, DO YOU SEE IT SAYS YOU WILL ALSO GET IT SIGNED, AND YOU REFER TO MR. PENNER. DO YOU SEE THAT? AND YOU SAY YOU WILL GET IT SIGNED BY MR. PENNER OR ANYONE IN THE WALTON FAMILY WHO WILL SEE THOSE MATERIALS?
DANIEL MOSLEY: YES, YES.
MR. WADE: AND THAT'S A SIMILAR LEVEL OF CAUTION THAT YOU WERE TAKING IN THAT APPROACH; IS THAT RIGHT?
DANIEL MOSLEY: I WAS CARRYING OUT MY COMMITMENT UNDER MY OWN PERSONAL CONFIDENTIAL DISCLOSURE AGREEMENT.
MR. WADE: OKAY. AND, AND YOU SEE THE LINE ON THE BOTTOM WHERE IT SAYS YOU LOOK FORWARD TO REVIEWING THE MATERIALS ONCE THEY'VE COME. DO YOU SEE THAT?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I BELIEVE THAT'S CORRECT.
MR. WADE: OKAY. AND, IN FACT, IF WE JUST JUMP UP TO THE EMAIL ON THE TOP, IF WE CAN JUST GO ALL OF THE WAY TO THE TOP, YOU SEE MS. HOLMES INDICATES HERE THAT THOSE MATERIALS WERE SENT OUT. DO YOU SEE THAT?
DANIEL MOSLEY: I DO. I SEE IT.
MR. WADE: AND, AND I THINK WE SAW A LETTER YESTERDAY THAT WAS DATED AROUND THE 18TH, SO MAYBE IT TOOK A COUPLE OF DAYS FOR THOSE MATERIALS TO ARRIVE; RIGHT?
DANIEL MOSLEY: THAT MAKES SENSE.
MR. WADE: OKAY. AND THE, THE -- AND I THINK IF WE GO TO 4173, I BELIEVE IT IS IN EVIDENCE. PERMISSION TO PUBLISH, YOUR HONOR?
JUDGE DAVILA: YES.
DANIEL MOSLEY: IS THAT 14173?
BY MR. WADE:
DANIEL MOSLEY: OKAY.
MR. WADE: AND YOU UNDERSTOOD THIS TO BE THE TRANSMISSION LETTER FROM THOSE THREE BINDERS OF MATERIALS THAT I WAS KIND ENOUGH TO HAND UP TO YOU YESTERDAY?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: I HAVE IT.
MR. WADE: AND DO YOU SEE THAT'S AN EMAIL FROM YOU -- THE BOTTOM EMAIL IS AN EMAIL FROM YOU TO MS. HOLMES ON SEPTEMBER 2ND RELATING TO THERANOS MATTERS?
DANIEL MOSLEY: I SEE IT.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14119 WAS RECEIVED IN EVIDENCE.)
(PAUSE IN PROCEEDINGS.)
(PAUSE IN PROCEEDINGS.)
BY MR. WADE:
DANIEL MOSLEY: I DO.
MR. WADE: AND I THINK I MOVED THE ADMISSION, AND I CAN'T REMEMBER IF I DID. IT'S BEEN ADMITTED; IS THAT RIGHT? CAN I GO TO THE ELMO WHILE WE WORK OUT THE TECHNICAL ISSUES HERE?
JUDGE DAVILA: SURE.
MR. WADE: DO YOU SEE THAT EMAIL UP ON THE SCREEN? IF WE CAN GO TO THE BOTTOM EMAIL AND BLOW THAT UP?
DANIEL MOSLEY: UH-HUH.
DANIEL MOSLEY: I DO.
MR. WADE: AND THAT'S THE SAME DATE AS THAT OUTLINE DOCUMENT THAT YOU HAD PREPARED FOR DR. KISSINGER. DO YOU RECALL THAT?
DANIEL MOSLEY: THAT SOUNDS RIGHT.
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. AND I THINK YOU REFERENCE HERE THAT YOU HAD ACTUALLY SPENT THE WEEKEND GOING THROUGH THE MATERIALS AND PREPARING THAT OUTLINE; CORRECT?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: I DON'T EVER RECALL SENDING IT TO HER.
DANIEL MOSLEY: I DON'T RECALL SENDING IT -- I DON'T UNDERSTAND THE QUESTION.
DANIEL MOSLEY: I DON'T RECALL IT. I DO NOT.
MR. WADE: OKAY. AND YOU TALKED ABOUT, IN CONNECTION WITH THIS EMAIL, HOW IMPRESSED YOU WERE BY THE COMPANY AND THE MATERIALS THAT YOU READ?
DANIEL MOSLEY: YES.
MR. WADE: AND YOU MENTION THAT YOU -- DO YOU SEE IN THE THIRD LINE THERE, YOU SAID -- OR THE BOTTOM OF THIS -- THE LAST PART OF THE SECOND LINE, OR THIRD LINE, YOU SAY YOU HAD A CONVERSATION WITH MR. KISSINGER FOLLOWING UP ON THAT; RIGHT?
DANIEL MOSLEY: YES, DR. KISSINGER.
MR. WADE: YES, THANK YOU, DR. KISSINGER. AND I DON'T WANT TO ASK ANYTHING ABOUT THE SUBSTANCE OF THOSE COMMUNICATIONS. HE WAS YOUR CLIENT; CORRECT?
DANIEL MOSLEY: CORRECT.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES. I THINK WE REVIEWED THE LETTER EARLIER THAT ENCLOSED IT, YES.
MR. WADE: I CERTAINLY SAW THE LETTER. AND IT'S YOUR UNDERSTANDING THAT THAT WAS THEN ACTUALLY COMMUNICATED TO DR. KISSINGER?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. YOU THEN -- YOU THEN, IN THE BOTTOM EMAIL, TALK ABOUT THE WALTON FAMILY. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: YES.
MR. WADE: AND YOU WERE HAVING -- AGAIN, NOT WANTING THE SUBSTANCE -- BUT AS HIS COUNSEL, YOU WERE HAVING SOME COMMUNICATIONS WITH MR. PENNER IN THIS PERIOD. DO YOU RECALL THAT?
DANIEL MOSLEY: I WAS. I DON'T KNOW IF I WOULD SAY "AS HIS COUNSEL." I WAS SIMPLY CHECKING TO SEE WHETHER HE HAD GOTTEN THE MATERIALS.
DANIEL MOSLEY: THAT'S WHAT IT SAYS.
DANIEL MOSLEY: THAT IS CORRECT.
MR. WADE: AND SO GIVEN THAT, YOU WOULD HAVE FELT FREE TO COMMUNICATE WITH MR. PENNER ABOUT THERANOS ISSUES; CORRECT?
DANIEL MOSLEY: I WOULD HAVE, YES.
MR. WADE: OKAY. AND YOU WERE JUST CHECKING TO FOLLOW UP TO MAKE SURE THAT THOSE MATERIALS WERE GOING TO BE SENT AGAIN. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I THINK IT SAYS THAT I GOT TWO COPIES, AND I JUST WANTED TO BE SURE THAT ONE OF THOSE COPIES WAS NOT INTENDED FOR GREG PENNER.
MR. WADE: UNDERSTOOD. AND DO YOU SEE THE LAST LINE OF THE FIRST PARAGRAPH, DO YOU SEE THERE IT SAYS, "I HAVE A FEW QUESTIONS AND WANT TO FOLLOW UP ON YOUR OFFER OF A BRIEFING BUT THOUGHT I WOULD WAIT UNTIL I HAVE ANY FURTHER QUESTIONS THAT MIGHT BE RAISED BY THE NIARCHOS FOUNDATION PEOPLE AFTER THEY HAVE HAD A CHANCE TO REVIEW THE MATERIALS AND MY OUTLINE." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: OKAY. SO YOU KNEW THOSE MATERIALS THAT YOU LOOKED AT WERE SORT OF THE FIRST SUBSTANTIVE MATERIALS ABOUT THERANOS THAT YOU HAD SEEN; CORRECT?
DANIEL MOSLEY: HUH -- YOU KNOW, I HAD CONVERSATIONS WITH ELIZABETH AND, YES, THEY WERE THE FIRST SUBSTANTIVE MATERIALS.
MR. WADE: AND NATURALLY AS A RESULT OF REVIEWING THREE BINDERS OF MATERIALS, YOU HAD SOME QUESTIONS; RIGHT?
DANIEL MOSLEY: I DID. I DID.
DANIEL MOSLEY: SURE.
MR. WADE: OKAY. AND AT SUBSEQUENT TIMES THERE WERE OTHER COMMUNICATIONS THAT YOU HAD WITH MS. HOLMES ABOUT THERANOS MATTERS?
DANIEL MOSLEY: SURE.
DANIEL MOSLEY: ABSOLUTELY. ABSOLUTELY.
MR. WADE: OKAY. AND LET'S GO -- SO ON THIS SAME DATE, YOU PREPARED THAT OUTLINE WHICH MR. SCHENK ASKED YOU ABOUT. LET'S TAKE A LOOK AT THAT. THAT'S 4197.
DANIEL MOSLEY: CAN YOU TELL ME WHAT -- CAN YOU TELL ME WHAT BINDER THAT IS IN?
MR. WADE: IT'S PROBABLY IN A COUPLE. IF YOU LOOK AT VOLUME ONE OF THE BINDER I GAVE YOU, MR. MOSLEY, I THINK YOU'LL SEE --
DANIEL MOSLEY: I'M IN VOLUME TWO. OKAY. I HAVE IT.
MR. WADE: OKAY. AND THIS WAS -- AGAIN, JUST TO SORT OF ORIENT US HERE, THIS IS THE OUTLINE THAT YOU HAD PREPARED OVER THE WEEKEND THAT YOU SAID YOU WERE GOING TO SEND OVER TO DR. KISSINGER; CORRECT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, I DID.
MR. WADE: AND TO YOUR KNOWLEDGE AS YOU SIT HERE TODAY, YOU NEVER PREPARED AN UPDATED DRAFT OF THIS DOCUMENT IN THE FUTURE, DID YOU?
DANIEL MOSLEY: NO, I DIDN'T.
DANIEL MOSLEY: NOT THAT I'M AWARE OF.
MR. WADE: OKAY. AND IN CONNECTION WITH THIS, IS IT FAIR TO SAY THAT THE PRINCIPAL SOURCE OF THE MATERIAL THAT YOU REFERENCED HERE ARE THE THREE BINDERS THAT YOU RECEIVED FROM MS. HOLMES?
DANIEL MOSLEY: I THINK IN COMBINATION WITH THAT AND MY CONVERSATIONS WITH ELIZABETH.
MR. WADE: OKAY. AND DID YOU HAVE ANY NOTES OR ANY DETAILED INFORMATION THAT YOU RECEIVED FROM MS. HOLMES THAT YOU KNOW THAT YOU WORKED INTO THIS ANALYSIS?
DANIEL MOSLEY: I DON'T THINK SO. I THINK MOST OF IT CAME DIRECTLY FROM THE PRINTED MATERIALS.
MR. WADE: OKAY. AND YOU WANTED TO GET THOSE MATERIALS AND GET A LITTLE MORE GROUNDED BEFORE YOU HAD A SUBSTANTIVE CONVERSATION I THINK YOU MENTIONED IN YOUR EMAIL TO HER; CORRECT?
DANIEL MOSLEY: RIGHT.
MR. WADE: AND AS I LOOK THROUGH THIS, I DON'T SEE ANY REFERENCE, FOR EXAMPLE, TO ANY MEDIA ARTICLES OR ANYTHING OF THAT NATURE WITHIN YOUR OUTLINE. DO YOU SEE ANY?
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. AND WOULD YOU THINK THAT YOU PROBABLY AT THAT POINT HADN'T DONE ANY OF THAT KIND OF REVIEW?
DANIEL MOSLEY: I WOULD, I WOULD BE SHOCKED IF I HADN'T DONE A GOOGLE SEARCH AND READ WHATEVER MEDIA ARTICLES THAT I COULD EVEN BEFORE I GOT THE MATERIALS.
DANIEL MOSLEY: I DON'T KNOW.
DANIEL MOSLEY: BUT CERTAINLY I PROBABLY READ THE MEDIA ARTICLES.
MR. WADE: OKAY. BUT YOU DON'T SEE ANY REFERENCES TO ANY OF THOSE SPECIFICALLY IN THE OUTLINE, DO YOU?
MR. WADE: OKAY. AND AGAIN, AT THIS POINT IN TIME YOU HADN'T GONE OUT AND DONE ANY INDEPENDENT RESEARCH OR ANYTHING ON THE COMPANY THAT WAS SIGNIFICANT IN NATURE, HAD YOU?
DANIEL MOSLEY: I DON'T THINK I HAD ANY WAY TO DO THAT AT THIS POINT.
MR. WADE: WELL, DR. KISSINGER HAD ASKED YOU TO TAKE A LOOK AT THE COMPANY? I BELIEVE THAT WAS YOUR TESTIMONY; RIGHT?
DANIEL MOSLEY: YES, HE ASKED ME TO SPEAK WITH ELIZABETH AND TAKE A LOOK AT THE COMPANY, YES.
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. IF WE GO TO -- LET'S GO TO THE LETTER, THE FIRST PAGE, TO DR. KISSINGER. AND DO YOU SEE THERE THE SECOND FULL SENTENCE, IT SAYS, "ELIZABETH IS QUITE UNDERSTANDABLY VERY CAREFUL ABOUT OBTAINING NONDISCLOSURE AGREEMENTS BEFORE PROVIDING ANY IN-DEPTH INFORMATION ABOUT THERANOS"? DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: AND WE JUST TALKED ABOUT IT. I CERTAINLY RESPECTED IT.
DANIEL MOSLEY: AND FULLY UNDERSTOOD IT.
MR. WADE: AND GIVEN THAT IT WAS A TECHNOLOGY COMPANY THAT HAD A LOT OF INTELLECTUAL PROPERTY AND THE LIKE, YOU FELT LIKE IT WAS APPROPRIATE TO BE PROTECTIVE OF THAT INFORMATION?
DANIEL MOSLEY: YES.
MR. WADE: YEAH. AND YOU HAD -- YOU HAVE INFORMATION AS A LAWYER THAT INFORMS YOUR UNDERSTANDING THERE; CORRECT?
DANIEL MOSLEY: THAT'S CORRECT.
MR. WADE: LET'S GO TO THE SECOND PAGE. AND I WANT TO ASK YOU SOME QUESTIONS ABOUT YOUR OUTLINE. OKAY? AND THIS IS WHERE THOSE THREE BINDERS THAT I HANDED YOU WILL COME INTO PLAY A LITTLE BIT. DO YOU SEE THERE UNDER ROMAN NUMERAL I(A), THERE'S A REFERENCE TO SUBSTANTIAL DATA THAT ATTEST TO THE QUALITY AND PERFORMANCE OF THE THERANOS TECHNOLOGY AND EQUIPMENT?
DANIEL MOSLEY: I SEE IT.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I BELIEVE IT WAS ME.
DANIEL MOSLEY: IT LOOKS LIKE MY ATTEMPTED UNDERLYING. I DON'T USE A RULER, SO...
MR. WADE: IT'S PRETTY STRAIGHT. AND THE -- AND IF I COULD JUST LOOK, YOU HAVE THE THREE BINDERS IN FRONT OF YOU?
DANIEL MOSLEY: UH-HUH.
MR. WADE: WHAT I'M GOING TO DO, I'M GOING TO ASK YOU SOME QUESTIONS ABOUT THIS, AND THEN I'M GOING TO ASK YOU SOME QUESTIONS THAT RELATE TO THE BINDERS THAT I THINK MIGHT BE RELATED. IF I COULD MOVE YOUR ATTENTION OR DRAW YOUR ATTENTION, WITHIN THE BINDER THREE OF THAT SET, TO PAGE 507. AND THIS IS IN EVIDENCE, YOUR HONOR. PERMISSION TO PUBLISH?
JUDGE DAVILA: YES.
DANIEL MOSLEY: JUST GIVE ME ONE SECOND.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: ALL RIGHT.
BY MR. WADE:
DANIEL MOSLEY: I WAS LOOKING IN THE BACK. IT IS RIGHT IN THE FRONT OF BINDER THREE.
DANIEL MOSLEY: NO, NO.
MR. WADE: DO YOU SEE THERE THAT IT SAYS INFECTIOUS DISEASE WORK AND SELECT CLINICAL CORRELATIONS?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I BELIEVE IT WAS.
DANIEL MOSLEY: OKAY.
MR. WADE: OKAY. AND DO YOU SEE HERE IT TALKS ABOUT THERANOS INFECTIOUS DISEASE WORK AND SELECT CLINICAL CORRELATIONS, AND IT PROVIDES AN OUTLINE -- I'LL GIVE YOU A SECOND.
DANIEL MOSLEY: YEAH, I JUST NEED TO FIND IT AND KEEP SOME ORDER HERE.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: OKAY. SORRY ABOUT THAT. OKAY.
BY MR. WADE:
DANIEL MOSLEY: I SEE IT.
MR. WADE: OKAY. AND DO YOU SEE THAT IT REFERENCES THERANOS INFECTIOUS DISEASE WORK AND SELECT CLINICAL CORRELATIONS THERE?
DANIEL MOSLEY: I SEE IT.
MR. WADE: AND THEN THERE ARE DIFFERENT CATEGORIES OF INFORMATION THAT IT IDENTIFIES THAT ARE PROVIDED, FIVE DIFFERENT CATEGORIES. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND YOU UNDERSTOOD AT THIS TIME THAT THERANOS -- AS PART OF THERANOS'S FUTURE BUSINESS MODELS, IT WANTED TO GET INTO INFECTIOUS DISEASE WORK. DO YOU RECALL THAT?
DANIEL MOSLEY: YES, I DO.
MR. WADE: AND IT WASN'T NECESSARILY DOING A LOT OF IT NOW, BUT THAT WAS PART OF ELIZABETH HOLMES'S VISION; CORRECT?
DANIEL MOSLEY: YOU KNOW, I DON'T RECALL THINKING THAT THEY WEREN'T ALREADY IN THAT BUSINESS, BUT I DO KNOW IT WAS VERY MUCH A PART OF THE VISION.
MR. WADE: OKAY. AND THAT THERE WERE A VARIETY OF DIFFERENT APPLICATIONS THAT COULD HAVE REAL BENEFITS AS THEY SORT OF ROLLED THAT OUT OVER TIME. DO YOU RECALL THAT?
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND THAT'S, AND THAT'S REFERENCED HERE ON THIS PAGE. AND DO YOU SEE THAT THERE'S ALSO A REFERENCE THERE TO -- NUMBER 2 IS A REFERENCE TO REAL-TIME SELF-LEARNING EPIDEMIOLOGICAL MODELS?
DANIEL MOSLEY: EPIDEMIOLOGICAL.
DANIEL MOSLEY: I SEE THAT.
MR. WADE: AND THE IDEA THERE, AND WE'LL TALK ABOUT IT IN A MINUTE, WAS TO ENABLE THE CONTAINMENT OF OUTBREAKS THROUGH THE USE OF A THERANOS SYSTEM; RIGHT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND THEN BELOW THAT, THERE ARE A COUPLE OF DIFFERENT CATEGORIES OF DIFFERENT TYPES OF ASSAYS AND DATA RELATED TO THAT THAT ARE REFERENCED. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND IF WE JUST LOOK -- DO YOU RECOGNIZE THAT FROM THIS PAGE 2 TO PAGE 204, THERE IS VERY DETAILED DATA THAT IS PROVIDED WITH RESPECT TO THERANOS'S ASSAYS?
DANIEL MOSLEY: YOU'RE NOW TALKING ABOUT THE PAGES THAT ARE BUILT INTO THE SLIDES, NOT THE BOTTOM RIGHT CORNER?
MR. WADE: YES, I'M TALKING ABOUT THE SLIDES. DO YOU RECOGNIZE THAT THERE ARE APPROXIMATELY 200 PAGES THERE OF DATA WITH RESPECT TO TESTS?
DANIEL MOSLEY: YES.
MR. WADE: AND I JUST WANT TO ASK YOU SOME QUESTIONS ABOUT A COUPLE OF THEM. LET'S GO TO 12, WHICH IS BATES LABELED 518.
DANIEL MOSLEY: I HAVE IT.
DANIEL MOSLEY: YES.
MR. WADE: AND HERE IT GIVES AN OVERVIEW OF SOME DIFFERENT PANELS IN FURTHERANCE OF SOME OF THAT WORK THAT THERANOS WAS WORKING TO DEVELOP. DO YOU SEE THAT?
DANIEL MOSLEY: YES, THERE'S A LIST OF PANELS.
MR. WADE: AND RELATING TO DIFFERENT FORMS OF INFECTIOUS DISEASE THAT THEY WERE DOING WORK ON HOPING TO UTILIZE IN THE FUTURE; RIGHT?
DANIEL MOSLEY: YOU KNOW, ALL I CAN -- ALL I CAN SAY IS THAT THERE ARE A LIST OF DIFFERENT PANELS.
DANIEL MOSLEY: I MOST CERTAINLY AM NOT.
MR. WADE: AND YOU SEE SOMEWHAT FAMILIAR, FOR EXAMPLE, THERE ARE MANY DIFFERENT CORONAVIRUS ASSAYS THERE. DO YOU SEE THAT?
DANIEL MOSLEY: YOU'LL HAVE TO POINT ME TO IT.
DANIEL MOSLEY: THE LEFT COLUMN IN THE MIDDLE BOX? YEAH, THERE'S A NUMBER THAT SAY CORONAVIRUS AND WITH SOME DESIGNATIONS AFTER IT.
DANIEL MOSLEY: YES, IN THE SAME BOX RIGHT ON THE RIGHT-HAND SIDE.
DANIEL MOSLEY: YES.
MR. WADE: AND THIS WAS TO PROVIDE -- THIS INFORMATION WAS PROVIDED TO GIVE YOU A SENSE OF THE TYPE OF WORK THAT THEY WERE DOING; RIGHT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
MR. WADE: DID YOU UNDERSTAND THAT THERANOS ALSO HAD A DATA GROUP THAT WAS WORKING TO DEVELOP ANALYTICAL TOOLS TO TRY TO HELP ADDRESS FUTURE OUTBREAKS?
DANIEL MOSLEY: YES, I DID UNDERSTAND THAT. THAT WAS ONE OF THE THINGS THAT THEY WERE WORKING ON.
MR. WADE: OKAY. AND SOME OF THE MATERIALS THAT ARE REFERENCED HERE IS SORT OF A MOCK-UP OF HOW THAT MIGHT WORK IN PRACTICE; CORRECT?
DANIEL MOSLEY: UM, YOU KNOW, I DON'T KNOW. I DON'T KNOW HOW TO INTERPRET ALL OF THIS.
DANIEL MOSLEY: I DO REMEMBER THAT WAS A REAL FOCUS THAT ELIZABETH HAD DISCUSSED WITH ME.
MR. WADE: AND THAT WAS ONE OF -- THAT WAS A BIG PART OF HER VISION FOR THE WAYS IN WHICH SHE THOUGHT THE TECHNOLOGY THAT WAS BEING DEVELOPED COULD REALLY HAVE BENEFITS OVER THE LONG RUN; RIGHT?
DANIEL MOSLEY: IT CERTAINLY SOUNDED LIKE IT, AND, YOU KNOW, IT WAS PART OF THE ATTRACTIVENESS OF THIS, THAT IT COULD BE USED FOR THAT PURPOSE, THIS TECHNOLOGY.
DANIEL MOSLEY: IN THE SAME?
DANIEL MOSLEY: OKAY.
MR. WADE: OKAY. AND HERE YOU SEE THEY'RE TALKING ABOUT SOME GENERAL CHEMISTRY TESTS AND PROVIDING CORRELATION DATA?
DANIEL MOSLEY: YES.
MR. WADE: AND DO YOU SEE THE PURPOSE OF THESE TESTS ARE TO COMPARE THERANOS'S TESTS TO REFERENCE RANGES? DO YOU SEE THAT?
DANIEL MOSLEY: THAT IS MY UNDERSTANDING OF IT, YES.
MR. WADE: AND DID YOU UNDERSTAND THAT THAT WAS COMPARING THERANOS'S REFERENCE TESTS TO SORT OF THE STANDARD FDA APPROVED TEST?
DANIEL MOSLEY: YES.
MR. WADE: AND IN THE MANY PAGES -- AND DO YOU KNOW AS YOU SIT HERE WHAT, FOR EXAMPLE, IN THE UPPER LEFT-HAND CORNER WHAT AN R SQUARED OF .997 MEANS?
DANIEL MOSLEY: I DON'T, BUT MY INTERPRETATION OF IT WOULD BE THAT IT MEANS HOW CLOSE THE CORRELATIONS ARE THAT ARE SHOWN ON THE GRAPH.
DANIEL MOSLEY: I'M NOT, I'M NOT A CHEMIST.
MR. WADE: FAIR ENOUGH. BUT IN THE MANY PAGES THAT FOLLOW HERE, THERE'S SUBSTANTIAL ADDITIONAL DATA WITH -- THAT'S PROVIDED IN CONNECTION WITH THE VARIOUS ASSAYS THAT THERANOS HAD BEEN WORKING TO DEVELOP; CORRECT?
DANIEL MOSLEY: UM --
DANIEL MOSLEY: THERE ARE A LOT OF, THERE ARE A LOT OF CHARTS THAT SEEM TO HAVE THE SAME ANALYSIS WHETHER -- THE CORRELATION LEVEL.
DANIEL MOSLEY: IS THIS BACK IN VOLUME TWO?
DANIEL MOSLEY: THIS IS MY OUTLINE?
MR. WADE: THIS IS YOUR OUTLINE. AND YOU SEE THERE THAT YOU REFER TO THAT SUBSTANTIAL DATA? DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: WHAT WAS THE, WHAT WAS THE CITE TO THAT?
DANIEL MOSLEY: OKAY. I HAVE IT.
MR. WADE: OKAY. AND I THINK YOU SAID THAT YOU SEE THAT YOU REFER TO THAT SUBSTANTIAL DATA IN YOUR OUTLINE; CORRECT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: OKAY.
MR. WADE: AND IF WE CAN LOOK AT THE TOP, DO YOU SEE THERE'S THAT REFERENCE TO THAT JOHNS HOPKINS RESEARCH? DO YOU SEE THAT?
DANIEL MOSLEY: ON PAGE 3 OF THE MEMO?
DANIEL MOSLEY: OKAY. I DO SEE THAT REFERENCE.
MR. WADE: OKAY. AND YOU RECALL YESTERDAY THAT YOU ENDED UP GETTING A COPY OF THAT DOCUMENT; CORRECT?
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I SEE THAT.
MR. WADE: DO YOU SEE THAT? AND YOU WERE AWARE AT THIS TIME THAT THERANOS HAD ENTERED INTO A WALGREENS -- A RELATIONSHIP WITH WALGREENS; CORRECT?
DANIEL MOSLEY: YES, I WAS.
MR. WADE: AND THAT WAS AN IMPORTANT ISSUE FOR YOU IN TERMS OF THE DECISION TO INVEST IN THE COMPANY; RIGHT?
DANIEL MOSLEY: YES, IT WAS.
DANIEL MOSLEY: YES, IT DID.
MR. WADE: AND YOU KNEW FROM YOUR EXPERIENCE THAT A COMPANY LIKE WALGREENS WOULD DO PRETTY EXTENSIVE DUE DILIGENCE BEFORE THEY WOULD GET INVOLVED IN THAT KIND OF A RELATIONSHIP; RIGHT?
DANIEL MOSLEY: I WOULD EXPECT THAT, YES.
DANIEL MOSLEY: I WOULD CERTAINLY EXPECT THAT.
MR. WADE: AND, AND YOU ASSUMED THAT WHEN YOU, WHEN YOU WERE ANALYZING THESE MATERIALS AND MAKING YOUR INVESTMENT DECISION; IS THAT FAIR?
DANIEL MOSLEY: WELL, I OBVIOUSLY READ THE JOHNS HOPKINS REPORT WHICH TALKED ABOUT WALGREENS, AND IT SEEMS TO BE COMMISSIONED BY WALGREENS, AND CERTAINLY THE JOHNS HOPKINS REPORT WAS ONE OF THE THINGS THAT IS BOTH COVERED IN THIS OUTLINE AND WAS IMPORTANT.
DANIEL MOSLEY: I DO.
MR. WADE: AND YOU KNEW AT THE TIME THAT WALGREENS WAS -- THE RELATIONSHIP WAS GOING TO BE IN A ROLLOUT OVER TIME; CORRECT?
DANIEL MOSLEY: I WAS TOLD THAT.
DANIEL MOSLEY: I DON'T BELIEVE -- I DON'T THINK I HAD SEEN -- I'M QUITE SURE I HAD NOT SEEN THE CONTRACT WITH WALGREENS.
MR. WADE: OKAY. BUT YOU -- LET'S LOOK AT, LET'S LOOK BACK IN YOUR BINDER SET, BINDER TWO OF YOUR THREE BINDER SET. AND IF YOU KEEP THAT ONE CLOSED, MR. MOSLEY, WE'RE GOING TO BE BACK AND FORTH WITH YOUR OUTLINE HERE A BIT.
DANIEL MOSLEY: OKAY. AND WE'RE IN BINDER TWO?
DANIEL MOSLEY: WHAT PAGE?
DANIEL MOSLEY: OKAY.
MR. WADE: AND THAT'S EXHIBIT 14206. DO YOU SEE THAT? AND WITHIN THIS -- NOW, 14206, WE'RE BACK IN THE BINDER SET THAT YOU HAD BEEN PROVIDED BY THE COMPANY; CORRECT?
DANIEL MOSLEY: CORRECT.
DANIEL MOSLEY: I BELIEVE IT WAS.
MR. WADE: OKAY. AND THEY WERE TALKING ABOUT HOW -- WITHIN THESE SLIDES THEY TALK ABOUT HOW THERANOS SAW ITSELF GOING INTO THE RETAIL SPACE; CORRECT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: OKAY. IT'S LABELED THERANOS INFRASTRUCTURE?
DANIEL MOSLEY: OKAY.
MR. WADE: AND DO YOU SEE HERE IT SAYS, "NATIONAL RETAIL FOOTPRINT AND HEALTH PLAN PARTNERSHIPS THROUGHOUT THE UNITED STATES FOR AN UNPRECEDENTED INFRASTRUCTURE WHICH EXCEED THAT OF ANY COMMERCIAL LABORATORY IN TODAY'S MARKET"? DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND KNEW AT THE TIME THAT THEY DIDN'T YET HAVE THAT NATIONAL RETAIL FOOTPRINT; CORRECT?
DANIEL MOSLEY: YES, I DID. I UNDERSTOOD THAT.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THAT'S WHAT I HAD BEEN TOLD, AND THAT'S WHAT I UNDERSTOOD.
MR. WADE: BUT YOU UNDERSTOOD THAT THE GOAL WAS TO HAVE A NATIONAL DEPLOYMENT WITH WALGREENS; RIGHT?
DANIEL MOSLEY: THAT'S WHAT I UNDERSTOOD.
MR. WADE: AND YOU UNDERSTOOD THAT THERE WERE A COUPLE OF PHASES TO THAT, IF YOU WILL. YOU KNEW THAT INITIALLY THE SAMPLES WERE PICKED UP AT THE WALGREENS AND BROUGHT TO A THERANOS LABORATORY; CORRECT?
DANIEL MOSLEY: I THINK I DID KNOW THAT THE THERANOS MACHINE WAS NOT ON SITE. IT WAS LOCATED OFF SITE AT THE TIME.
DANIEL MOSLEY: I, I -- YOU KNOW, CERTAINLY I CAME TO KNOW THAT AT SOME POINT BEFORE I INVESTED, BUT I -- AND I DON'T KNOW AT THIS PARTICULAR TIME WHETHER I KNEW THAT OR NOT, BUT I CERTAINLY CAME TO KNOW THAT.
MR. WADE: FAIR ENOUGH. AND THAT THE GOAL OF THE COMPANY WAS TO GET FURTHER REGULATORY APPROVAL AND THEN TO DISTRIBUTE THE DEVICES IN VARIOUS GEOGRAPHIC LOCATIONS; CORRECT?
DANIEL MOSLEY: I DIDN'T -- YOU KNOW, HONESTLY, I DIDN'T KNOW WHETHER THERE WAS ANY FURTHER REGULATORY APPROVAL REQUIRED TO EXPAND IT. I DID NOT KNOW THAT. OR, YOU KNOW, THAT'S -- YOU'RE ASKING ME IF I KNEW THAT? NO.
DANIEL MOSLEY: SURE, SURE.
DANIEL MOSLEY: YEAH, ABSOLUTELY.
MR. WADE: BUT YOU KNEW THAT AT SOME POINT IN THE FUTURE -- SETTING ASIDE FOR THE TIME BEING THE REGULATORY APPROVAL -- YOU KNEW THAT THERE WAS THIS DESIRE TO DEPLOY THESE DEVICES?
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND PART OF MS. HOLMES'S VISION THAT SHE COMMUNICATED ABOUT IT IN TERMS OF THE APPLICATIONS THAT THE TECHNOLOGY COULD HAVE WERE WHEN THE DEVICE WAS DISTRIBUTED OUT IN VARIOUS SETTINGS; CORRECT?
DANIEL MOSLEY: YEAH, THAT WAS A BIG PART OF THE PLAN AS I UNDERSTOOD IT.
MR. WADE: OKAY. AND IF WE GO JUST COUPLE MORE SLIDES FORWARD HERE, THE NEXT SLIDE, WHICH IS BATES 286, THIS SHOWS SORT OF THE HOPE OF THAT NATIONAL FOOTPRINT WHEN FULLY IMPLEMENTED; CORRECT?
DANIEL MOSLEY: I BELIEVE IT DOES.
MR. WADE: AND LET'S GO ONE MORE SLIDE FORWARD. AND THIS TALKS ABOUT -- DO YOU SEE IT SAYS, "THERANOS'S FOOTPRINT AT RETAIL" THERE?
DANIEL MOSLEY: I DO SEE IT.
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND PART OF MS. HOLMES'S FUTURE VISION WAS TO BE WITHIN A FEW MILES OF BASICALLY EVERY CUSTOMER IN AMERICA; RIGHT?
DANIEL MOSLEY: I CLEARLY UNDERSTOOD THAT, YES.
MR. WADE: OKAY. AND THIS VISION AND THE PROMISE OF WHAT THE TECHNOLOGY MIGHT BE ABLE TO DO WAS AN IMPORTANT THING TO YOU IN CONNECTION WITH YOUR INVESTMENT?
DANIEL MOSLEY: ABSOLUTELY.
DANIEL MOSLEY: OKAY. I HAVE IT.
DANIEL MOSLEY: PAGE 3?
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. AND DO YOU SEE THERE IN THE BOTTOM YOU REFERENCED THE PFIZER STUDY? DO YOU SEE THAT?
DANIEL MOSLEY: IT'S ON PAGE 2 OF THE MEMO OF THE OUTLINE. BUT, YES, I DO SEE IT.
DANIEL MOSLEY: SORRY.
MR. WADE: JUST SO THE RECORD IS CLEAR, WE'RE ON PAGE 3 OF THE EXHIBIT, PAGE 2 OF THE MEMO; CORRECT?
DANIEL MOSLEY: I'M THERE.
DANIEL MOSLEY: I DO.
MR. WADE: AND LET'S GO DOWN AND LOOK AT, JUST BRIEFLY, UP TOP HERE WHEN YOU SET FORTH THE FACTS RELATING TO THE PFIZER STUDY. YOU UNDERSTOOD THAT THIS WAS A STUDY WHERE THERANOS DEVICES WERE ACTUALLY LOCATED OUT IN 32 REMOTE LOCATIONS WHERE THEY WERE USED BY CONSUMERS TO DO TESTING? RIGHT?
DANIEL MOSLEY: YES. I DON'T REMEMBER HOW MANY OF THOSE. AS I REMEMBER THE REPORT, SOME NUMBER OF THEM WERE IN INDIVIDUALS' HOMES, AND THERE WERE MAYBE ONE OR TWO OR SOMETHING IN A PARTICULAR CENTER. BUT, YES, THERE WAS SOMETHING LIKE 30-PLUS.
MR. WADE: AND, IN FACT, IF YOU LOOK AT THE SECOND PARAGRAPH, YOU SEE THERE, DO YOU SEE 27 WERE DEPLOYED DIRECTLY IN PATIENT'S HOMES, AND 4 INSTRUMENTS WERE DEPLOYED AT THE CLINICAL SITE?
DANIEL MOSLEY: I SEE THAT, YES.
MR. WADE: YOU SEE THAT? AND YOU UNDERSTOOD THAT THOSE WERE SHIPPED AND THEY WERE USED SO THEY COULD TEST THIS HYPOTHESIS OF WHETHER THE DEVICE COULD BE USED WITHIN A PATIENT'S HOME?
DANIEL MOSLEY: THAT'S WHAT THE REPORT SAID, YES.
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND AS YOU SIT HERE TODAY, YOU DON'T HAVE ANY REASON TO BELIEVE THAT THEY DIDN'T DO EXACTLY THAT EXPERIMENT, DO YOU?
DANIEL MOSLEY: I HAVE NO, I HAVE NO REASON TO BELIEVE OR NOT BELIEVE.
MR. WADE: OKAY. BUT YOU WERE PROVIDED THE REPORT AND YOU NOTED THOSE FACTS AND THE DESCRIPTION OF THAT WORK THAT WAS DONE AS A FACTOR THAT WAS SIGNIFICANT TO YOU; CORRECT?
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND I THINK YOU -- ON YOUR DIRECT TESTIMONY YOU SAID YOU CAME TO THE VIEW THAT PFIZER HAD DRAFTED THIS REPORT; CORRECT?
DANIEL MOSLEY: THAT WAS MY VIEW.
MR. WADE: OKAY. AND YOU NEVER WENT BACK AND SOUGHT ANY CLARIFICATION ON WHO ACTUALLY DRAFTED THE REPORT FROM THERANOS; CORRECT?
DANIEL MOSLEY: I DID NOT.
MR. WADE: OKAY. AND I WOULD LIKE TO GO TO PAGE 3 OF THE MEMO, PAGE 4 OF THE EXHIBIT, AND LOOK AT THERANOS BUSINESS APPROACH.
DANIEL MOSLEY: I'M THERE.
MR. WADE: OKAY. DO YOU SEE THERE YOU PROVIDE A SUMMARY OF SOME OF YOUR ANALYSIS HERE? DO YOU SEE THAT?
DANIEL MOSLEY: YES. I MEAN, YES.
DANIEL MOSLEY: WELL, I'M JUST TALKING ABOUT MY UNDERSTANDING OF THE BUSINESS APPROACH AS RELAYED TO ME BY THE MATERIALS AND BY ELIZABETH.
DANIEL MOSLEY: YEAH, HE ASKED ME FOR MY VIEWS ON IT, YES.
DANIEL MOSLEY: YES.
MR. WADE: AND IN DOING THAT, YOU SEE IN THAT FIRST BULLET THERE'S A REFERENCE TO THE FACT THAT THE WALGREENS PARTNERSHIP WAS PUBLICLY ANNOUNCED IN THE FALL OF 2013. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU RECALL WHETHER YOU LOOKED AT ANY OF THE PRESS RELEASES OR ANYTHING RELATING TO THAT?
DANIEL MOSLEY: I, I AM CERTAIN THAT I HAD READ "THE WALL STREET JOURNAL" ARTICLE --
DANIEL MOSLEY: -- THAT PRECEDED THIS THAT ANNOUNCED THE PARTNERSHIP.
MR. WADE: OKAY. DO YOU KNOW WHETHER -- WELL, LET ME SEE IF I CAN REFRESH YOUR RECOLLECTION. EXHIBIT 1113 IS IN EVIDENCE. PERMISSION TO PUBLISH, YOUR HONOR.
JUDGE DAVILA: YES.
BY MR. WADE:
MR. WADE: YOU DON'T HAVE A COPY OF THAT, MR. MOSLEY, BUT I'LL APPROACH AND GIVE YOU A COPY AND PUT ONE ON THE SCREEN.
DANIEL MOSLEY: OKAY.
JUDGE DAVILA: NO. THAT'S FINE. THANK YOU.
BY MR. WADE:
MR. WADE: AND DO YOU SEE THAT THIS IS THE JOINT PRESS RELEASE OF THERANOS AND WALGREENS ANNOUNCING THEIR PARTNERSHIP IN SEPTEMBER OF 2013?
DANIEL MOSLEY: IT CERTAINLY LOOKS LIKE A PRESS RELEASE. I CAN'T -- YES, IT DOES SAY THERANOS INC. AND WALGREENS ANNOUNCED TODAY. I DON'T KNOW. I CAN'T CHARACTERIZE IT AS A JOINT OR A PRESS RELEASE OR A PRESS RELEASE BY ONE OF THE TWO COMPANIES.
DANIEL MOSLEY: I'M, I'M --
DANIEL MOSLEY: YES.
MR. WADE: DO YOU SEE THERE IN THE PRESS RELEASE IT SAYS, "THE SAMPLES ARE EITHER TAKEN FROM A TINY FINGERSTICK OR A MICRO-SAMPLE TAKEN FROM TRADITIONAL METHODS, ELIMINATING THE NEED FOR LARGER NEEDLES AND NUMEROUS VIALS OF BLOOD REQUIRED FOR MOST DIAGNOSTIC LAB TESTING." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU REMEMBER WHETHER YOU REVIEWED THIS PRESS RELEASE IN CONNECTION WITH THE PREPARATION OF YOUR MEMO?
DANIEL MOSLEY: I'M NOT SURE WHETHER -- I REVIEWED IT AT THE TIME I PREPARED THE MEMO OVER THE COURSE OF A WEEKEND, AND I DO NOT KNOW WHETHER I HAD THIS AS PART OF THE MATERIALS.
MR. WADE: OKAY. AND YOU SEE THERE WHERE IT SAYS, "MICRO-SAMPLE TAKEN FROM TRADITIONAL METHODS," DO YOU UNDERSTAND THAT TO MEAN VENOUS METHODS?
DANIEL MOSLEY: NO. IT SAYS, "EITHER TAKEN FROM A TINY FINGERSTICK OR A MICRO-SAMPLE TAKEN FROM TRADITIONAL METHODS." I CAN'T SAY THAT I FOCUSSED ON THOSE WORDS AND REACHED ANY CONCLUSION.
DANIEL MOSLEY: YES, I DO, FROM A VEIN.
MR. WADE: OKAY. BUT YOU DON'T RECALL WHETHER YOU FOCUSSED ON THAT LANGUAGE AT THE TIME THAT YOU WERE LOOKING AND PREPARING YOUR OUTLINE?
DANIEL MOSLEY: I DON'T, AND I DON'T KNOW WHETHER THIS MIGHT HAVE BEEN REFERRING TO OTHER TYPES OF BODY FLUID.
DANIEL MOSLEY: SORRY.
DANIEL MOSLEY: I'M SORRY.
DANIEL MOSLEY: I DON'T.
DANIEL MOSLEY: OKAY.
MR. WADE: BUT YOU DID UNDERSTAND, BASED UPON THE MEMO, THAT THAT PARTNERSHIP HAD STARTED IN THE FALL OF 2013; RIGHT?
DANIEL MOSLEY: THAT WAS MY UNDERSTANDING, YES.
DANIEL MOSLEY: THAT PARTNERSHIP, YES.
MR. WADE: OKAY. AND IF WE CAN -- DO YOU SEE A COUPLE BULLETS DOWN IT SAYS THEY FILED PATENT APPLICATIONS FOR 400 OR MORE PATENTS IN THE U.S. AND IN A NUMBER OF DIFFERENT COUNTRIES. DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE IT.
MR. WADE: AND DO YOU RECALL THAT THAT, AMONG THE MATERIALS PROVIDED IN YOUR THREE BINDER SET, WAS A VERY EXTENSIVE LIST OF PATENT APPLICATIONS, PATENTS THAT WERE APPROVED, AND VARIOUS OTHER TRADEMARKS AND THE LIKE?
DANIEL MOSLEY: I DO REMEMBER THERE BEING SOME LISTING OF PATENTS AND TRADEMARKS, YES.
DANIEL MOSLEY: ABSOLUTELY.
DANIEL MOSLEY: YES.
MR. WADE: IF WE CAN GO TO THE TOP OF PAGE 4. I'M SORRY, THE TOP OF PAGE 5 OF THE EXHIBIT, WHICH IS PAGE 4 OF THE MEMO.
DANIEL MOSLEY: YES.
MR. WADE: JUST TO TRULY CONFUSE US ALL. YOU SEE UP THERE IT SAYS, "ELIZABETH HOLMES AND THERANOS APPEAR TO HAVE ACCOMPLISHED THIS BEFORE ITS MAJOR COMPETITORS HAD A CHANCE TO UNDERSTAND HOW DISRUPTIVE THERANOS WOULD BE." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND YOU UNDERSTOOD THAT THEY WERE IN A KIND OF STEALTH MODE FOR A LONG TIME AS THEY WERE DOING A LOT OF RESEARCH AND DEVELOPMENT WORK?
DANIEL MOSLEY: THAT WAS MY UNDERSTANDING.
MR. WADE: AND THAT THEY HAD BEEN ABLE TO MAINTAIN THE SECRECY OF A LOT OF THEIR INTELLECTUAL PROPERTY AND WHAT THEY WERE DOING WHICH HAD COMPETITIVE BENEFITS FOR THEM?
DANIEL MOSLEY: THAT WAS MY UNDERSTANDING.
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND IF WE GO TO A COUPLE OF BULLETS DOWN YOU SEE THAT THERE'S A REFERENCE, THERE'S A REFERENCE THERE TO I BELIEVE FIVE ITEMS BUT THERE ARE TWO ROMAN NUMERAL IV'S. DO YOU SEE THAT?
DANIEL MOSLEY: MY TYPO.
MR. WADE: WE'RE ALL HUMAN. AND DO YOU SEE ONE REFERENCE IS AN ARRAY OF TESTS. DO YOU SEE THAT, THE FIRST ROMAN NUMERAL?
DANIEL MOSLEY: YES, IT -- OH, THE -- I THINK YOU'RE TALKING ABOUT THE FIRST ROMAN NUMERAL IV IT SAYS, "THE ABILITY TO PERFORM A VAST NUMBER OF TESTS."
MR. WADE: RIGHT. AND DO YOU SEE THE SECOND ROMAN NUMERAL IV SAYS, "THE ABILITY A VAST NUMBER OF TESTS WITH ONLY A FEW DROPS OF BLOOD REQUIRING JUST A FINGER PRICK." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND YOU UNDERSTOOD THAT THERE WERE SOME TESTS THAT THERANOS COULDN'T PERFORM ON A FINGERSTICK; RIGHT?
DANIEL MOSLEY: I DIDN'T KNOW THAT AT THE TIME, AND I'M NOT SURE THAT THIS ASSESSED THAT.
DANIEL MOSLEY: THAT IS CORRECT.
DANIEL MOSLEY: YES, IT DOES.
MR. WADE: AND DO YOU RECALL AT ONE POINT YOU WENT TO THE COMPANY AND YOU SAW A HIGH THROUGHPUT COMMERCIAL MACHINE?
DANIEL MOSLEY: I DID GO TO THE COMPANY AND I DID GET A, FROM ELIZABETH, A TOUR OF SOME OF THE LABS, AND I DID SEE ONE, MAYBE ONE OR MORE, I DON'T REMEMBER SPECIFICALLY, VERY LARGE PIECES OF EQUIPMENT. BUT, FRANKLY, I'M NOT QUALIFIED TO TELL YOU WHAT IT WAS OR WHAT IT WAS DOING.
DANIEL MOSLEY: I DID SEE ONE VERY LARGE PIECE OF EQUIPMENT, YES.
DANIEL MOSLEY: AND THERE COULD HAVE BEEN MORE.
MR. WADE: YEAH. AND YOU DIDN'T FORM A COMPLETE UNDERSTANDING AS TO WHAT THE CAPACITY OF THOSE MACHINES WERE?
DANIEL MOSLEY: I DID NOT FORM -- I DIDN'T REALLY HAVE A JUDGMENT EVEN AS TO WHAT THE MACHINES WERE.
DANIEL MOSLEY: BUT I ASSUMED THAT THEY SOMEHOW INVOLVED THE WORK THAT THERANOS WAS DOING.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I'M SORRY. I'M SORRY.
MR. WADE: SO NEITHER ONE OF US GET IN TROUBLE HERE. THE, THE -- YOU JUST SAW THIS AS MS. HOLMES WAS TAKING YOU THROUGH THE COMPANY AND SHOWING YOU A VARIETY OF DIFFERENT ITEMS; CORRECT?
DANIEL MOSLEY: THAT IS CORRECT.
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND IF WE GO DOWN, AND IF WE CAN RESET THE BULLET POINTS AND START WITH THE BULLET WITH "THE PARTNERSHIP WITH WALGREENS IS BRILLIANT." NO, NEXT ONE DOWN. SORRY. YES, I WANT TO MAKE SURE THAT EVERYONE CAN SEE THAT. I'M SORRY, MR. BENNETT. CAN WE GO UP ONE. YEAH, THERE WE GO. DO YOU SEE THERE IN YOUR MEMO IT SAYS, "THE PARTNERSHIP WITH WALGREENS IS BRILLIANT." DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: IT WAS.
MR. WADE: AND THAT'S BECAUSE IT WAS GOING TO PROVIDE THIS DISTRIBUTION CHANNEL WHERE THE COMPANY WAS GOING TO BE ABLE TO START CENTRALIZED TESTING AND THEN DEPLOY ITS DEVICES; CORRECT?
DANIEL MOSLEY: WELL, I THOUGHT IT WAS BRILLIANT BECAUSE IT WAS A WAY TO GET THEIR TEST OUT TO INDIVIDUALS AND WIDELY DISTRIBUTE THEIR TESTS BECAUSE OF THE NUMBER OF WALGREENS LOCATIONS. AND WE LOOKED AT EARLIER THE DESCRIPTION OF THE PROXIMITY OF THE WALGREENS STORES TO THE VAST ARRAY OF THE POPULATION OF THE UNITED STATES.
MR. WADE: FAIR ENOUGH. AND IF YOU LOOK AT THAT, THE SECOND BULLET THAT IS UP ON THE SCREEN THERE, IT TALKS ABOUT THOSE, THOSE CONCEPTS WHERE IT TALKS ABOUT GREAT CONVENIENCE AND AFFORDABLE PRICING BEING A SIGNIFICANT PART OF THE THERANOS APPROACH AND BENEFITS; RIGHT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: IT WAS.
MR. WADE: OKAY. AND IF WE CAN GO TO THE SECOND TO THE LAST BULLET THAT IS ON THE SCREEN, DO YOU SEE IT SAYS, "THE WALGREENS PARTNERSHIP INCENTS WALGREENS TO ROLL OUT THE THERANOS WELLNESS CENTERS EXPEDITIOUSLY;" RIGHT?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I'M NOT SURE WHY I THOUGHT THAT AT THE TIME. I MEAN, I THINK THE BENEFIT OF IT DRIVING FOOT TRAFFIC IN WALGREENS STORES WAS CERTAINLY -- I WOULD HAVE THOUGHT THAT AS BEING AN INCENTIVE TO WALGREENS TO ROLL THIS OUT, BUT I DON'T KNOW EVERYTHING THAT WENT INTO THE THOUGHT BEHIND THAT SENTENCE.
DANIEL MOSLEY: BUT I SUSPECT THAT THAT WAS PRINCIPALLY IT.
MR. WADE: OKAY. AND YOU UNDERSTOOD AT THIS TIME THAT THE KEY -- THAT THIS ROLLOUT WAS A PRETTY BIG UNDERTAKING; RIGHT?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: YES.
MR. WADE: YOU HAVE SOME CLIENTS WHO HAVE SOME RETAIL EXPERIENCE AND YOU KNOW THAT THAT'S A BIG AND TOUGH ASSIGNMENT; RIGHT?
DANIEL MOSLEY: IT WAS A BIG UNDERTAKING, YES.
MR. WADE: AND THE ABILITY TO HAVE -- I'LL WITHDRAW THE QUESTION. LET ME GO DOWN TO THE -- IN THE MEMO TO THE SCOPE OF THE THERANOS OPPORTUNITY. AND HERE YOU TALK ABOUT THE POTENTIAL SCOPE AS ENORMOUS; RIGHT?
DANIEL MOSLEY: YES.
MR. WADE: AND YOU SAW A LOT OF POTENTIAL FOR THE PERFORMANCE OF THE COMPANY BASED UPON THE VISION THAT YOU HAD HEARD; RIGHT?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND LET'S GO TO THE NEXT PAGE, PAGE 5 OF THE MEMO, PAGE 6 OF THE EXHIBIT SO THE RECORD IS CLEAR. I WANT TO FOCUS YOU ON ITEM C THERE. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: IT DOES.
MR. WADE: AND YOU RECOGNIZE THAT THE PENETRATION INTO WALGREENS AT THIS TIME WAS PRETTY SMALL; RIGHT?
DANIEL MOSLEY: I SAID IT WAS REALLY SMALL.
DANIEL MOSLEY: CORRECT.
DANIEL MOSLEY: THIRTY STORES.
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: OKAY. AND IF WE CAN GO DOWN TO THE BOTTOM POINT IN G. DO YOU SEE THAT IT SAYS -- YOU TALK ABOUT SOME OF THE PATENTS AND HOW IT SUGGESTS THAT THERE ARE OTHER POSSIBILITIES THAT WERE CREATED BY THEIR INTELLECTUAL PROPERTY PORTFOLIO. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND YOU HAD DONE SOME -- I THINK YOU NOTED IN YOUR MEMO THAT YOU HAD DONE SOME LOOKING AT THAT -- THOSE MATERIALS RELATING TO THE PORTFOLIO? DO YOU RECALL THAT?
DANIEL MOSLEY: I DON'T REMEMBER AND, YOU KNOW, I CAN'T HONESTLY SAY THAT I CAN LOOK AT A LIST OF PATENTS AND HAVE A GOOD JUDGMENT, BUT I THINK I HAD SEEN REFERENCES, AND IT COULD HAVE BEEN IN THE PRESS OR OTHER PLACES, TO THIS IDEA THAT THERE WOULD BE A NUMBER OF OTHER DISRUPTIVE POTENTIALS OF THIS TECHNOLOGY.
MR. WADE: AND, IN FACT, IF WE LOOK AT THE CARRYOVER OF THAT LANGUAGE, BASED ON THEIR INTELLECTUAL PROPERTY, IT COULD BE THERE COULD BE SOME WEARABLE DEVICES OR OTHER THINGS THAT COULD BE DEVELOPED IN THE FUTURE?
DANIEL MOSLEY: IT SAYS THAT, AND THAT WAS MY UNDERSTANDING.
MR. WADE: OKAY. NOW, LET'S GO -- LET'S CONTINUE THROUGH THE MEMO. DO YOU SEE THERE IT SAYS, "THE CURRENT AND PROJECTED FINANCIAL RESULTS"?
DANIEL MOSLEY: I SEE IT.
MR. WADE: OKAY. AND I THINK MR. SCHENK HAD ASKED YOU A FEW QUESTIONS ABOUT THIS. DO YOU RECALL THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND IF I CAN CALL -- AND THIS MATERIAL CAME OUT OF SOME OF THE PROJECTIONS, SPREADSHEETS THAT THE COMPANY PROVIDED TO YOU IN THE THREE VOLUME SET OF MATERIALS; CORRECT?
DANIEL MOSLEY: I BELIEVE THAT'S CORRECT.
MR. WADE: OKAY. IF I CAN DRAW YOUR ATTENTION TO THE BACK OF BINDER TWO OF THE MATERIALS THERANOS PROVIDED YOU, WHICH IS EXHIBIT 14206, BATES PAGE 481.
DANIEL MOSLEY: VOLUME TWO OF THREE?
DANIEL MOSLEY: AND THAT PAGE NUMBER AGAIN, PLEASE.
DANIEL MOSLEY: OKAY. THANK YOU. OKAY.
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. AND THESE, THESE ARE, THESE ARE SOME OF THE PROJECTIONS THAT MR. SCHENK WAS ASKING YOU ABOUT. DO YOU RECALL THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND I THINK APART FROM JUST LOOKING AT THE DOCUMENTS, YOU DON'T HAVE A SIGNIFICANT RECOLLECTION ABOUT A LOT OF THE SPECIFICS WITHIN THESE SPREADSHEETS, DO YOU?
DANIEL MOSLEY: NOT A LOT OF DETAILED.
MR. WADE: OKAY. DO YOU RECALL THAT -- AND I THINK IT'S REFERENCED LATER IN YOUR MEMO, WHICH WE'LL GET TO. BUT YOU HAD SOME QUESTIONS ABOUT SOME OF THE NUMBERS. DO YOU RECALL THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND DO YOU RECALL THAT YOU HAD SOME CONVERSATIONS OR YOU HAD POSED SOME QUESTIONS TO MR. BALWANI ABOUT THE 2015 PROJECTIONS?
DANIEL MOSLEY: YOU KNOW, I DID HAVE QUESTIONS ABOUT THE 2015 PROJECTIONS. I DON'T REMEMBER WHO I ADDRESSED THEM TO OR WHEN I ADDRESSED THEM.
DANIEL MOSLEY: BUT I CERTAINLY HAD QUESTIONS.
MR. WADE: OKAY. YOU RECALL THAT YOU HAD A MEETING WITH THE GOVERNMENT WAY BACK IN 2017. DO YOU REMEMBER THAT?
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: RIGHT.
DANIEL MOSLEY: UH-HUH.
DANIEL MOSLEY: OH, YES, I WAS INTERVIEWED BY THE S.E.C. AND THE FBI.
MR. WADE: OKAY. LET ME JUST SEE IF I CAN REFRESH YOUR RECOLLECTION ON THIS POINT. IF I CAN -- WE CAN LEAVE THIS DOCUMENT UP, BUT IF YOU CAN GO TO 1 -- IN VOLUME TWO -- I'M SORRY, IN VOLUME ONE OF --
DANIEL MOSLEY: THIS ISN'T THE MATERIALS THAT I -- THIS ISN'T THE VOLUME OF THE THREE SET, IT'S THE OTHER?
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: UM --
DANIEL MOSLEY: VOLUME ONE?
MR. WADE: -- VOLUME ONE. AND I'M GOING TO DRAW YOUR ATTENTION TO EXHIBIT 11115. SO FOUR 1'S AND A 5.
DANIEL MOSLEY: OKAY. I HAVE IT.
MR. WADE: OKAY. AND IF YOU CAN GO TO PAGE 3. AND IF YOU -- DO YOU SEE THE FIRST FULL PARAGRAPH THERE STARTING WITH "MOSLEY."
DANIEL MOSLEY: THE ONE THAT SAYS, "MOSLEY SAW THESE DOCUMENTS"?
MR. WADE: PLEASE DON'T READ IT. I'M GOING TO ASK YOU TO READ IT TO YOURSELF. I'M JUST TRYING TO REFRESH YOUR RECOLLECTION.
DANIEL MOSLEY: OKAY. SORRY.
MR. WADE: NOPE. IF YOU CAN READ FROM THERE THROUGH THE WORD "PROJECTIONS" ON THE FIFTH LINE -- SIXTH LINE TO YOURSELF.
MR. SCHENK: YOUR HONOR, BEFORE WE DO THIS, I'M GOING TO OBJECT ON RELEVANCE AND FOUNDATION. WE NEED TO IDENTIFY THE TIMEFRAME, IS THIS 2015 OR NOT, TO DETERMINE IF IT'S RELEVANT.
JUDGE DAVILA: DO YOU WANT TO DO THAT?
MR. WADE: WELL, I NEED TO SEE IF I CAN REFRESH HIS RECOLLECTION BEFORE I CAN KNOW THE TIMEFRAME. WHY DON'T I SEE IF THIS REFRESHES HIS RECOLLECTION, AND THEN I'LL ASK HIM ABOUT THE TIMEFRAME.
JUDGE DAVILA: ALL RIGHT.
(PAUSE IN PROCEEDINGS.)
BY MR. WADE:
MR. WADE: HAVE YOU HAD A CHANCE, MR. MOSLEY, TO READ TO YOURSELF THE FIRST SIX LINES OF THAT DOCUMENT?
DANIEL MOSLEY: YES, I HAVE.
MR. SCHENK: YOUR HONOR, THAT'S WHAT I'M GOING TO OBJECT TO.
MR. WADE: I DON'T KNOW HOW ELSE TO DO IT BECAUSE SO FAR HE HAS TO BE ABLE TO SAY IT REFRESHED HIS RECOLLECTION.
JUDGE DAVILA: WELL, ARE YOU TALKING ABOUT A 2015 TIME PERIOD OR WHAT TIME PERIOD ARE YOU TALKING ABOUT?
MR. WADE: THE PROJECTIONS FOR 2015, WHICH ARE REFERENCED IN THE EXHIBIT THAT THE WITNESS HAS BEEN ASKED ABOUT EXTENSIVELY.
JUDGE DAVILA: I SEE THAT. I SEE THAT.
JUDGE DAVILA: I THINK MR. SCHENK'S OBJECTION IS A LACK OF FOUNDATION AS TO THE TIMING OF -- MAYBE YOU SHOULD LAY A FOUNDATION A LITTLE BIT MORE ABOUT --
JUDGE DAVILA: WHY DON'T YOU TRY IT AGAIN.
MR. WADE: MR. MOSLEY, DO YOU RECALL THAT YOU HAD SOME COMMUNICATIONS WITH MR. BALWANI IN CONNECTION WITH THE FINANCIAL PROJECTIONS THAT WERE PROVIDED BY THE GOVERNMENT?
DANIEL MOSLEY: I DON'T REMEMBER IT SPECIFICALLY, BUT I MIGHT WELL HAVE HAD A CONVERSATION WITH HIM BECAUSE I DID HAVE QUESTIONS ABOUT THE 2015 PROJECTIONS.
MR. WADE: OKAY. AND AS YOU SIT HERE TODAY, YOU DON'T REMEMBER WHETHER IT WAS MR. BALWANI WHO PROVIDED THAT INFORMATION TO YOU?
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. AND THE MATERIALS THAT YOU JUST READ DON'T REFRESH YOUR RECOLLECTION AS TO WHETHER HE PROVIDED THAT INFORMATION TO YOU IN CONNECTION WITH THESE PROJECTIONS THAT WERE IN YOUR BINDER?
DANIEL MOSLEY: YOU KNOW, OBVIOUSLY WHEN I WAS INTERVIEWED I SAID WHAT I KNEW AND UNDERSTOOD AT THAT TIME AND ASSUMING THAT THEY CORRECTLY TOOK THAT DOWN, THEN I CERTAINLY THOUGHT AT THAT TIME THAT SUNNY BALWANI HAD RESPONDED TO THOSE QUESTIONS.
MR. WADE: OKAY. OKAY. AND IF WE CAN GO BACK TO THE DOCUMENT ITSELF. AND JUST SO WE'RE -- NO, I'M SORRY. IF WE CAN GO BACK TO THE SPREADSHEET THAT YOU WERE JUST ON, MR. BENNETT, 14206, 481. OKAY. YOU SEE IN THE UPPER LEFT-HAND CORNER THESE WERE PROJECTED STATEMENT OF INCOME; RIGHT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: YES.
MR. WADE: AND THE GOVERNMENT ASKED YOU ABOUT SOME OF THESE PROJECTIONS FOR THE DIFFERENT YEARS. DO YOU RECALL THAT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. I'D LIKE TO TURN YOUR ATTENTION TO THE SECOND PAGE OR THE NEXT PAGE. AND DO YOU SEE THAT THIS IS A PROJECTED STATEMENT OF CASH FLOW?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I DO.
MR. WADE: AND THIS IS A DOCUMENT THAT SETS FORTH THE CASH THAT THE COMPANY IS TO RECEIVE IN CONNECTION WITH IN 2000 -- I'M JUST FOCUSSED ON '14 AND '15. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE THAT IN CONNECTION WITH THE SERVICES NBL BY WALGREENS, THAT THERE IS NOTHING THERE? THERE ARE ZEROS?
DANIEL MOSLEY: ON '14 AND '15, YES.
MR. WADE: OKAY. AND YOU SEE ALSO IN CONNECTION WITH SAFEWAY THERE'S ZEROS THERE FROM A CASH STANDPOINT?
DANIEL MOSLEY: WELL, THERE'S A BLANK, OR JUST A DASH.
DANIEL MOSLEY: THERE ARE NO NUMBERS.
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND YOU SEE THAT IT INDICATES THAT THE FINANCIAL NUMBERS THAT WERE PROVIDED WERE THE PERIOD ENDED JULY 14TH, 2014?
DANIEL MOSLEY: THAT'S THE DATE ON THIS BALANCE SHEET, YES.
MR. WADE: OKAY. AND IF WE JUST GO DOWN, DO YOU SEE THE LINE ENTRY FOR DEFERRED REVENUE AND CUSTOMER DEPOSITS? DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: THAT IS CORRECT.
MR. WADE: OKAY. AND, AND YOU UNDERSTAND THAT SOMETIMES EVENTS NEED TO HAPPEN BEFORE REVENUE CAN ACTUALLY BE RECOGNIZED AND IT NEEDS TO BE DEFERRED UNTIL THOSE EVENTS HAPPEN; RIGHT?
DANIEL MOSLEY: I DO UNDERSTAND THAT.
DANIEL MOSLEY: CAN YOU DIRECT ME BACK TO THE VOLUME NUMBER AND THE PAGE NUMBER?
DANIEL MOSLEY: IS IT IN VOLUME ONE?
DANIEL MOSLEY: SORRY ABOUT THAT. OKAY.
DANIEL MOSLEY: I DO.
JUDGE DAVILA: YES.
BY MR. WADE:
MR. WADE: I HAVE AN EXTRA COPY OF 4197, AND I'LL JUST HAND IT TO YOU AND MAYBE THAT WILL MAKE IT A LITTLE EASIER FOR YOU (HANDING).
DANIEL MOSLEY: THAT WILL MAKE IT A LITTLE EASIER. I APPRECIATE IT.
MR. WADE: AND DO YOU SEE IN PARAGRAPH E YOU TALK A LITTLE BIT ABOUT THE VALUATION OF THE COMPANY? I'M ON EXHIBIT PAGE 8, MEMO PAGE 7.
DANIEL MOSLEY: MEMO PAGE 7. I'M THERE.
MR. WADE: OKAY. AND DO YOU SEE THAT YOU SET THE VALUE OF THERANOS AGAINST THE TWO PRINCIPAL PUBLICLY TRADED DIAGNOSTIC TEST PROVIDERS?
DANIEL MOSLEY: YES, THAT'S WHAT THIS PARAGRAPH DISCUSS.
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: THAT'S CORRECT.
MR. WADE: AND YOU UNDERSTOOD THAT THE VALUATION BASED ON THE OFFERING PRICE IN THE C-2 ROUND WOULD HAVE VALUED THERANOS AT ABOUT 8.8 BILLION?
DANIEL MOSLEY: I WAS AWARE OF THAT, YES.
MR. WADE: OKAY. AND LET'S GO TO PAGE 8 OF YOUR MEMO, PAGE 9 OF THE EXHIBIT, WHICH WOULD BE THE NEXT PAGE.
DANIEL MOSLEY: I HAVE IT.
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: ABSOLUTELY.
MR. WADE: AND THAT THIS INVESTMENT IN PARTICULAR WAS A SPECULATIVE INVESTMENT. DO YOU RECALL THAT?
DANIEL MOSLEY: YOU KNOW, I DON'T KNOW IF I WOULD CHARACTERIZE IT QUITE THE WAY YOU WOULD, BUT IT CERTAINLY INVOLVED RISK.
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU RECALL THE PROVISION IN THERE, THE COVENANT THAT REFERRED TO THIS AS A SPECULATIVE --
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I DID.
MR. WADE: AND THAT THEY WERE LESS THAN A YEAR INTO THEIR PRINCIPAL COMMERCIAL RELATIONSHIP; RIGHT?
DANIEL MOSLEY: WITH WALGREENS, YES.
DANIEL MOSLEY: YES, I DID.
MR. WADE: AND YOU KNEW THAT THERANOS ITSELF HAD -- DID NOT HAVE A LOT OF RETAIL EXPERIENCE; RIGHT?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND THAT AS A RESULT, THAT THIS WAS ONE OF THOSE COMPANIES THAT HAD A FAIR AMOUNT OF RISK? YOU COULD LOSE ALL OF YOUR MONEY; RIGHT?
DANIEL MOSLEY: IT CERTAINLY HAD RISK, AND IT WAS CERTAINLY POSSIBLE TO LOSE ALL OF YOUR MONEY, YES.
MR. WADE: OKAY. BUT THERE WAS, THERE WAS -- YOU ALSO SAW A REAL POTENTIAL IN THE COMPANY WITH RESPECT TO MS. HOLMES'S VISION AS WE'VE DISCUSSED?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: THAT IS CORRECT.
MR. WADE: I'M SURE IF YOU HAD UPDATED THIS MEMO, YOU MIGHT HAVE EVEN ADDED SOME MORE RISKS; IS THAT FAIR?
DANIEL MOSLEY: I HAVEN'T SAT DOWN AND THOUGHT ABOUT IT, BUT IT'S POSSIBLE I WOULD HAVE ADDED MORE RISKS.
MR. WADE: OKAY. AND IN PARTICULAR, YOU NOTE THE RISK RELATING TO WALGREENS AS THE FIRST RISK THERE; RIGHT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, I DID.
MR. WADE: AND THE SECOND RISK THAT YOU IDENTIFY RELATES TO THE PROJECTED INCREASE IN REVENUE. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND IN THAT, THE INCREASE IN REVENUES TO $990 MILLION IS A VERY SUBSTANTIAL INCREASE; CORRECT?
DANIEL MOSLEY: JUST WHAT I SAID.
DANIEL MOSLEY: YES, VERY SUBSTANTIAL.
MR. WADE: AND SO THIS IS ONE OF THE AREAS WHERE YOU ACTUALLY SAID THAT YOU WANTED TO MAYBE GET A LITTLE MORE INFORMATION ON THAT; RIGHT?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND I THINK MR. SCHENK HAD ASKED YOU ABOUT SOME NOTES THAT ACTUALLY RELATE TO THAT ISSUE; RIGHT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: SOME HANDWRITTEN NOTES, YES.
DANIEL MOSLEY: THIS BINDER (INDICATING)?
DANIEL MOSLEY: I THINK THEY WERE, YEAH. THEY WERE HANDWRITTEN ON A PAGE IN THAT BINDER, YES.
MR. WADE: OKAY. LET'S TAKE A LOOK AT THAT. THAT'S IN BINDER TWO RIGHT NEAR THE FRONT, SIR. IT'S 126.
DANIEL MOSLEY: IT'S THE WRONG BINDER.
DANIEL MOSLEY: YEAH, IT'S -- OKAY. OH, THE MATERIALS THAT WERE OF THE THREE SET BINDER.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: JUST GIVE ME ONE SECOND, PLEASE. AND WHAT PAGE WAS THAT?
DANIEL MOSLEY: 126. I HAVE IT.
MR. WADE: OKAY. AND WE'VE PUT THAT UP ON THE SCREEN. AND THESE ARE NOTES THAT YOU TOOK WHEN YOU WERE MAKING INQUIRIES WITH RESPECT TO THAT ISSUE ON THE 2015 PROJECTIONS; CORRECT?
DANIEL MOSLEY: YOU KNOW, HONESTLY, I DON'T REMEMBER -- THEY'RE OBVIOUSLY NOTES I TOOK, BUT I DON'T REMEMBER EXACTLY WHEN I TOOK THEM OR WHAT IT WAS BASED ON, A CONVERSATION OR BASED ON THE MATERIALS.
MR. WADE: OKAY. BUT IN EITHER EVENT, YOU UNDERSTOOD THAT THE 2014 -- EXCUSE ME. LET ME START OVER. THE 2015 NUMBERS YOU UNDERSTOOD INCLUDED AN ASSUMPTION THAT THERE WOULD BE SIGNIFICANT PENETRATION WITHIN THE WALGREENS RELATIONSHIP; RIGHT?
DANIEL MOSLEY: I THOUGHT THAT, YES.
MR. WADE: OKAY. AND IF WE CAN GO BACK TO YOUR MEMO, WHICH I HOPE YOU HAVE A LOOSE COPY IN FRONT OF YOU TO MAKE IT EASIER.
DANIEL MOSLEY: I DO. I DO. THANKS.
DANIEL MOSLEY: I DO.
MR. WADE: AND YOU RECALL MR. SCHENK ASKED YOU SOME QUESTIONS ABOUT VARIOUS SHAREHOLDER RIGHTS ISSUES YOU IDENTIFIED?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. ONE OF THE ISSUES YOU IDENTIFIED WAS IN CONNECTION WITH -- IT'S NOT RELATED TO THIS PARAGRAPH, BUT IT RELATED TO A LIQUIDATION PREFERENCE. DO YOU RECALL THAT?
DANIEL MOSLEY: YES, WE DID TALK ABOUT LIQUIDATION PREFERENCE, YES.
MR. WADE: OKAY. AND WHAT THAT MEANT BASICALLY IS IF THERE WAS A BANKRUPTCY OR SOMETHING, THAT THE C-2 INVESTORS WOULD SORT OF BE AT THE FRONT OF THE LINE; CORRECT?
DANIEL MOSLEY: THAT IS CORRECT.
DANIEL MOSLEY: CLASS B COMMON SHARES, YES.
MR. WADE: RIGHT. AND IN TERMS OF THAT LINE, IF THERE WAS A BANKRUPTCY, SHE WOULD COME LOWER IN PRIORITY; RIGHT?
DANIEL MOSLEY: YES, SHE WOULD COME AT THE COMMON LEVEL, WHICH WOULD BE BELOW ALL OF THE PREFERRED, YES.
MR. WADE: AND, AND YOU ALSO UNDERSTAND, AS A RESULT OF REVIEWING THE MATERIALS, THAT ESSENTIALLY THERE WAS A TIME WHERE MS. HOLMES OWNED THE WHOLE COMPANY, OR SUBSTANTIALLY ALL OF THE COMPANY; RIGHT?
DANIEL MOSLEY: I SUSPECT WHEN IT WAS FIRST SET UP AND BEFORE THEY HAD ISSUED ANY PREFERRED OR OTHER COMMON STOCK, SHE PROBABLY OWNED 100 PERCENT.
DANIEL MOSLEY: I WOULD HAVE GUESSED THAT.
MR. WADE: AND WITH FOUNDERS, OFTENTIMES OVER TIME AS THEY ISSUE STOCK TO INVESTORS, THEY KIND OF DILUTE THEMSELVES?
DANIEL MOSLEY: YES, THAT'S COMMON.
MR. WADE: OKAY. AND YET, MS. HOLMES MAINTAINED, BECAUSE OF THOSE CLASS B SHARES, A VOTING MAJORITY WITHIN THE COMPANY; RIGHT?
DANIEL MOSLEY: A VERY SUBSTANTIAL VOTING MAJORITY, YES.
MR. WADE: OKAY. AND AS A RESULT OF THAT, IF SHE HAD WANTED, SHE COULD HAVE PUT HERSELF, VIRTUALLY BY HER OWN VOTE, INTO A LIQUIDATION PREFERENCE OVER THE C-2 INVESTORS AND MADE HERSELF BE FRONT OF THE LINE?
DANIEL MOSLEY: THAT'S NOT MY UNDERSTANDING OF THE LAW.
MR. WADE: OKAY. YOU UNDERSTOOD, THOUGH, WHEN YOU WERE INVESTING THAT YOURSELF AND THE OTHER PEOPLE WHO WERE COMING IN WERE GOING TO GET THAT PREFERENCE IN CONNECTION WITH THE INVESTMENT?
DANIEL MOSLEY: YEAH. I UNDERSTOOD ANYBODY, UNDER THE ARTICLES OF INCORPORATION OF THE COMPANY, WHICH ARE LEGALLY BINDING, THAT THE C-2 SHAREHOLDERS WOULD BE PAID OFF FIRST.
MR. WADE: OKAY. AND THE OTHER SHAREHOLDER ISSUE THAT YOU LOOKED AT RELATED TO A REDEMPTION RIGHT ISSUE; RIGHT?
DANIEL MOSLEY: THAT IS CORRECT.
MR. WADE: AND WAS THE BASIC CONCEPT THERE THAT THE COMPANY HAD THE RIGHT TO REPURCHASE SHARES IF IT WAS DETERMINED THAT THE VALUE OF THE COMPANY DROPPED BELOW $15 OR SOMETHING LIKE THAT?
DANIEL MOSLEY: THAT WAS NOT MY UNDERSTANDING OF IT.
DANIEL MOSLEY: MY UNDERSTANDING, HAVING READ IT, AND I THINK THE -- MAYBE THE QUOTE IS BURIED IN THIS PARAGRAPH D. THERE WAS A PROVISION IN THE ARTICLES OF INCORPORATION THAT BASICALLY SAID THAT AT ANY TIME THE SHARE -- THE BOARD COULD HAVE THE COMPANY VALUED, WHATEVER THE BOARD OR AN APPRAISER DETERMINED THE VALUE WAS AT THAT TIME, AND THEN THE BOARD WOULD HAVE THE RIGHT TO REDEEM SHARES FROM ANY, ANY ONE OR MORE SHAREHOLDERS AT WHATEVER PRICE THE BOARD DETERMINED THE FAIR MARKET VALUE TO BE AT THAT TIME.
MR. WADE: OKAY. AND YOU WERE CONCERNED BECAUSE YOU WANTED TO MAKE SURE THAT THEY COULDN'T REDEEM THE SHARES FOR BELOW $17, BELOW THE INVESTMENT AMOUNT; RIGHT?
DANIEL MOSLEY: YES. WELL, BECAUSE IT WOULD BE, IN MY JUDGMENT, COMPLETELY INAPPROPRIATE TO BE -- TO SELL SHARES FOR $17 AND THEN COME BACK SIX MONTHS LATER AND SAY, THE BOARD THINKS IT'S WORTH 12, WE'RE GOING TO BUY YOUR SHARES BACK AT 12.
MR. WADE: AND WE'LL GET TO THIS LATER, BUT YOU ULTIMATELY RAISED THIS ISSUE WITH THE COMPANY; RIGHT?
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: YEAH, I REQUESTED A CLARIFICATION THAT THIS WOULDN'T BE APPLIED.
DANIEL MOSLEY: NO, THERE WAS NO CHANGE MADE IN THE ARTICLES OF INCORPORATION. BUT THERE WAS A SHORT NOTE THAT ELIZABETH SENT TO ME SAYING THAT WE WOULD NOT INVOKE THIS WITH RESPECT TO YOU OR ANY OF YOUR CLIENTS THAT HAPPENED TO INVEST.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
JUDGE DAVILA: IT WOULD BE. LET'S TAKE OUR 30 MINUTE BREAK, LADIES AND GENTLEMEN, 30 MINUTES.
(RECESS FROM 11:09 A.M. UNTIL 11:46 A.M.)
(JURY OUT AT 11:46 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD OUTSIDE OF THE PRESENCE OF THE JURY. MR. BOSTIC, I THINK, DID YOU WANT TO AUGMENT THE RECORD, SIR, IN REGARDS TO OUR DISCUSSION THIS MORNING?
MR. BOSTIC: YES, YOUR HONOR. WITH THE COURT'S PERMISSION, I'LL SWITCH SIDES NOT TO DISTURB MR. WADE'S NOTES.
JUDGE DAVILA: SURE. RIGHT.
MR. BOSTIC: I GAVE MS. TREFZ A HEADS UP ABOUT THIS. I JUST WANTED TO RAISE ONE ADDITIONAL THOUGHT TO THE COURT REGARDING THE DEFENSE'S MOTION TO PRECLUDE THE TESTIMONY OF PATIENT VICTIM BB.
JUDGE DAVILA: YES.
MR. BOSTIC: AND I UNDERSTAND THE COURT'S PREVIOUS COMMENTS. TO THE EXTENT THE COURT'S CONCERNS ARE ABOUT NOTICE TO THE DEFENSE AND THE DEFENSE'S OPPORTUNITY TO PREPARE, I HAD MENTIONED THAT THIS WITNESS WAS PREPARING TO TESTIFY AS EARLY AS TOMORROW. I JUST WANTED TO RAISE FOR THE COURT THAT THE GOVERNMENT IS, OF COURSE, WILLING TO DEFER THAT WITNESS'S TESTIMONY AND HAVE THE WITNESS TESTIFY TOWARDS THE VERY END OF THE GOVERNMENT'S CASE TO THE EXTENT THAT WOULD ADDRESS THE COURT'S CONCERN ABOUT NOTICE. I COULDN'T HELP BUT NOTE THAT DURING THE ARGUMENT EARLIER, MS. TREFZ CITED CLIA REGULATIONS AND THE PERMISSIBLE DEGREE OF VARIATION WHEN IT CAME TO THE SPECIFIC ASSAY. THAT MAKES ME OPTIMISTIC THAT THE DEFENSE IS EITHER CURRENTLY PREPARED TO ADDRESS THIS ASSAY WITH THIS PATIENT, OR COULD BE IN THAT POSITION GIVEN A LITTLE BIT OF ADDITIONAL TIME. SO I WANTED TO RAISE THAT IN CASE IT'S A SOLUTION TO THE PROBLEM.
JUDGE DAVILA: THANK YOU. THANK YOU. MS. TREFZ.
MS. TREFZ: IT WILL BE NO SURPRISE TO YOUR HONOR TO LEARN THAT WE DO NOT THINK THAT THAT IS A SOLUTION TO THE PROBLEM. IT IS NOT A SOLUTION BECAUSE THESE ASSAYS ARE VERY COMPLICATED, AND WE'VE RAISED THIS ISSUE FOR QUITE A LONG TIME. I DON'T ASSUME THAT THE GOVERNMENT HAS SIX MONTHS LEFT IN ITS CASE. IF WE'RE WRONG, I'D LIKE TO KNOW THAT. BUT WE'RE AT THIS POINT EIGHT MONTHS BEYOND WHERE WE LITERALLY IDENTIFIED THIS PARTICULAR PATIENT AND THIS PARTICULAR ISSUE, AND ESSENTIALLY I'M NOT SURE WHEN THE GOVERNMENT FIRST UNDERSTOOD THAT PLATELETS ARE A DIFFERENT ASSAY THAN PT, BUT I THINK THAT SHOULD GIVE THE COURT PAUSE IN AND OF ITSELF THAT THIS WOULD -- THAT, YOU KNOW, ALLOWING THE GOVERNMENT TO FIX ITS CASE, YOU KNOW, AFTER MONTHS AND MONTHS OF RELIANCE ON THE GOVERNMENT'S REPRESENTATIONS AND THE BILL OF PARTICULARS, THE FACT THAT WE COULD POTENTIALLY COME UP WITH AN ARGUMENT SIMPLY DOES NOT FIX THE ISSUE. AND THE GOVERNMENT -- AND THE COURT SHOULD NOT HELP THE GOVERNMENT CORRECT ITS CASE IN A CRIMINAL, IN A CRIMINAL CASE LIKE THIS.
JUDGE DAVILA: WELL, THANK YOU. MR. BOSTIC SUGGESTS THAT YOUR EXPRESSION SUGGESTS A GREAT FLUENCY ABOUT THE TECHNOLOGY HERE AND THE ASSAYS SUCH THAT YOU WOULD NOT SUFFER GREAT PREJUDICE, PARTICULARLY IF THE WITNESS WERE PUT LATER ON THE LIST SUCH THAT YOU DIDN'T HAVE TO PREPARE THIS WEEK, BUT PERHAPS IN THE WEEKS TO COME, AND THAT WOULD THEREFORE MITIGATE ANY PREJUDICE THAT YOU MIGHT ENGAGE.
MS. TREFZ: IS THE WITNESS GOING TO BE PERMITTED TO TESTIFY AS TO SCIENTIFIC PRINCIPLES? BECAUSE I DON'T THINK HE HAS THE BASIS TO DO THAT. AND I BELIEVE IT'S PROBLEMATIC FOR US TO BE PUT TO THE BURDEN OF ESSENTIALLY COMING UP WITH THE SCIENTIFIC UNDERSTANDING THAT, FRANKLY, THE GOVERNMENT HAS THE BURDEN TO PUT ON AND HAS NO ABILITY TO DO THAT BASED ON THE CURRENT DISCLOSURES THAT HAVE BEEN PENDING FOR A LONG TIME IN THIS CASE. SO I DON'T THINK THAT'S A SUFFICIENT SOLUTION. I THINK BASICALLY WHAT HAS BEEN PRETTY CLEAR HERE IS THAT THE GOVERNMENT DID NOT UNDERSTAND THAT IT HAD THIS ISSUE, AND THAT IS THROUGH NO FAULT OF OURS. WE RAISED THE ISSUE BACK IN FEBRUARY, AND ACTUALLY BEFORE THAT IN NOVEMBER. AND I BELIEVE THE COURT SHOULD CONTINUE TO HOLD THE GOVERNMENT TO THE HIGH STANDARD THAT IT SHOULD HOLD ITSELF TO IN A CRIMINAL CASE WHERE MY CLIENT IS FACING A LIBERTY, OBSTRUCTION OF HER LIBERTY.
MR. BOSTIC: I'LL ONLY ADD, YOUR HONOR, THAT THE PURPOSE OF THE BILL OF PARTICULARS, AS I SAID BEFORE, AND I THINK THIS IS THE COURT'S UNDERSTANDING, TOO, BASED ON THE RULING, WAS TO PROVIDE NOTICE TO THE DEFENSE. WE'RE SEARCHING FOR A PRACTICAL SOLUTION HERE THAT ALLOWS THIS VICTIM TO BE HEARD IN THIS CASE, WHILE AT THE SAME TIME NOT PREJUDICING THE DEFENSE. WE BELIEVE WE HAVE SUGGESTED THAT SOLUTION, BUT WE LEAVE IT TO THE COURT'S JUDGMENT.
JUDGE DAVILA: THANK YOU VERY MUCH. THANK YOU BOTH VERY MUCH. THANK YOU, MR. BOSTIC. THANK YOU, MS. TREFZ. AND WE CAN BRING THE JURY IN NOW. ARE WE GOING TO TAKE A BREAK AT 1:00 O'CLOCK -- OR EXCUSE ME, 1:30?
MS. TREFZ: THANK YOU.
MR. BOSTIC: THANK YOU.
JUDGE DAVILA: MR. DOWNEY, MR. SCHENK, MAY I SEE YOU AT SIDE-BAR.
(SIDE-BAR DISCUSSION WITH MR. DOWNEY AND MR. SCHENK AND THE COURT OFF THE RECORD.)
JUDGE DAVILA: YOU HAVE NO PLACE ELSE TO GO?
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 12:07 P.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD IN THE HOLMES MATTER. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. MR. MOSLEY IS ON THE STAND. MR. WADE, YOU'D LIKE TO CONTINUE?
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. I JUST HAVE A COUPLE MORE QUICK QUESTIONS. DO YOU HAVE THE FIRST PAGE OF THAT DOCUMENT UP, THE LETTER TO DR. KISSINGER?
DANIEL MOSLEY: YES, I DO.
MR. WADE: OKAY. LET'S BLOW THAT UP. DO YOU SEE IN THE BOTTOM, DO YOU SEE HOW YOU MENTION THAT "IT WOULD BE BEST TO OBTAIN A NONDISCLOSURE AGREEMENT FROM ANYONE BEFORE PROVIDING THEM WITH A COPY OF MY OUTLINE"? DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND TO FACILITATE THAT, YOU ACTUALLY NOTE THAT YOU'VE ENCLOSED A COPY OF THE BLANK CONFIDENTIAL DISCLOSURE AGREEMENT THAT YOU GOT FROM THERANOS.
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. AND I NOTED WITHIN THE MEMO ITSELF -- AND, AGAIN, THIS MEMO WAS MEANT FOR DR. KISSINGER IN THE FIRST INSTANCE; CORRECT?
DANIEL MOSLEY: IN THE ONLY INSTANCE.
MR. WADE: OKAY. AND YOU HAD COMMUNICATIONS WITH HIM, APART FROM THIS, WITHOUT ASKING ABOUT THE SUBSTANCE OF THE COMMUNICATIONS?
DANIEL MOSLEY: I TALKED TO HIM ON A REGULAR BASIS. SO, YES, I BELIEVE I HAD COMMUNICATIONS WITH HIM OVER THIS PERIOD.
MR. WADE: OKAY. AND SO AS A RESULT OF THAT, DID YOU NOT FEEL A NEED TO PUT ANY SORT OF LIMITATIONS ON THE MATERIALS THAT YOU HAD LOOKED AT OR REVIEWED IN CONNECTION WITH YOUR PREPARATION OF THIS DOCUMENT?
DANIEL MOSLEY: I'M NOT SURE I UNDERSTAND WHAT YOU'RE ASKING.
MR. WADE: WELL, YOU DIDN'T QUALIFY YOUR ANALYSIS WITHIN THE MEMO AS ONE THAT WAS A PRELIMINARY ANALYSIS THAT WAS LIMITED IN SOME NATURE; CORRECT?
DANIEL MOSLEY: I THOUGHT THAT WAS SUFFICIENTLY CLEAR GIVEN THAT I WAS PROVIDING IT TO HIM WITHIN A RELATIVELY SHORT PERIOD OF TIME OF HAVING GOTTEN THE MATERIALS.
MR. WADE: OKAY. YOU THOUGHT THAT AS A RESULT -- AGAIN, WITHOUT GOING INTO THE SUBSTANCE OF THE COMMUNICATION -- YOU THOUGHT THAT WAS CLEAR TO DR. KISSINGER?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. THE -- BEFORE THE BREAK WE HAD ASKED -- I HAD ASKED YOU A COUPLE OF QUESTIONS ABOUT THE FDA AND CLIA REGULATIONS. DO YOU RECALL THAT?
DANIEL MOSLEY: I DON'T.
DANIEL MOSLEY: I DON'T REMEMBER YOU ASKING.
MR. WADE: OKAY. DO YOU RECALL, DO YOU RECALL THAT THE COMPANY HAD PLANS TO GO AND GET FDA APPROVAL IN A CLIA WAIVER?
DANIEL MOSLEY: I CERTAINLY KNEW THAT THE COMPANY PLANNED TO GET FDA APPROVAL, AND I THINK THE MATERIALS SAID THAT THEY HAD ALREADY RECEIVED A CLIA WAIVER.
DANIEL MOSLEY: OKAY.
MR. WADE: CORRECT? BUT DID YOU UNDERSTAND -- DO YOU RECALL UNDERSTANDING THAT THE FDA APPROVAL AND A CLIA WAIVER WAS REQUIRED TO DISTRIBUTE THE DEVICE?
DANIEL MOSLEY: NO, I DID NOT.
MR. WADE: OKAY. LET ME SEE IF I CAN REFRESH YOUR RECOLLECTION. IF YOU CAN GO IN THE FIRST BINDER --
DANIEL MOSLEY: OF THE MATERIALS?
MR. WADE: -- OF MY MATERIALS. NO, NOT YOUR MATERIALS, OF MY MATERIALS. I THINK WE'LL BE DONE WITH THE BINDERS PROBABLY FOR THE BALANCE OF YOUR TESTIMONY.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: OKAY. I'M THERE.
MR. WADE: OKAY. AND IF YOU COULD JUST READ TO YOURSELF 151 AND TELL ME WHEN YOU'VE COMPLETED READING THAT TO YOURSELF.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: OKAY. I'VE READ IT.
BY MR. WADE:
MR. WADE: OKAY. AND JUST CALLING YOUR ATTENTION IN PARTICULAR TO LINE 21. DOES THIS REFRESH YOUR RECOLLECTION THAT YOU UNDERSTOOD THAT THERANOS'S BUSINESS IN THE FUTURE WOULD DEPEND ON GETTING AN FDA APPROVAL AND A CLIA WAIVER AND THAT THAT MIGHT NOT HAPPEN?
DANIEL MOSLEY: YOU KNOW, THIS DOESN'T REALLY -- I'M NOT, OBVIOUSLY, A REGULATORY EXPERT BY ANY MEANS, BUT I DID NOT -- MY UNDERSTANDING AT THE TIME -- AND THIS IS OBVIOUSLY A DEPOSITION I GAVE. BUT MY UNDERSTANDING, I BELIEVE AT ALL TIMES, WAS THAT FDA APPROVAL WASN'T NEEDED, AND I HAD A NUMBER OF CONVERSATIONS WITH ELIZABETH WHO SAID, WE INTEND TO GET FDA APPROVAL BECAUSE THAT IS THE GOLD STANDARD.
MR. WADE: OKAY. JUST DRAWING YOUR ATTENTION TO THIS, YOU KNOW THIS WAS A DEPOSITION THAT YOU GAVE UNDER OATH?
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: UM, YES.
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: I DID. OH, I'M SORRY.
MR. WADE: YOU GAVE TESTIMONY UNDER OATH AND THERE WAS A COURT REPORTER THERE WHO TOOK DOWN YOUR ANSWERS?
DANIEL MOSLEY: YES, I DO REMEMBER THAT.
MR. WADE: OKAY. AND YOU RECALL IN CONNECTION WITH THAT YOU WERE ASKED, DID YOU UNDERSTAND THAT IF THERANOS'S -- THERANOS'S BUSINESS IN THE FUTURE WOULD DEPEND ON GETTING AN FDA APPROVAL AND A CLIA WAIVER, THAT THAT MIGHT NOT HAPPEN? AND YOU ANSWERED, YES, I UNDERSTOOD THAT IT WAS A CONDITION? DID I READ THAT CORRECTLY?
DANIEL MOSLEY: UM, JUST ONE SECOND. LET ME READ THE -- YES, I SAID, "YES, I UNDERSTOOD THAT WAS A CONDITION."
DANIEL MOSLEY: YES, YOU DID.
MR. WADE: OKAY. BACK TO YOUR MEMO AT 4197. IF WE CAN JUST GO IN THE BOTTOM RIGHT-HAND CORNER. DO YOU SEE THERE'S A BATES LABEL FOR DYNASTY. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DID YOU UNDERSTAND DYNASTY TO BE SECRETARY BETSY DEVOS AND MR. DICK DEVOS'S FAMILY ENTITY?
DANIEL MOSLEY: I CERTAINLY DIDN'T UNDERSTAND IT TO BE BECAUSE I NEVER REFERRED TO IT AS THAT.
DANIEL MOSLEY: I'M FAMILIAR WITH THEIR -- I'M FAMILIAR THAT DICK AND BETSY HAVE A FAMILY OFFICE, BUT I COULDN'T TELL YOU WHAT THEY CALL IT.
DANIEL MOSLEY: VOLUME ONE OR VOLUME TWO?
DANIEL MOSLEY: OKAY.
MR. WADE: OKAY. AND DO YOU RECOGNIZE THIS -- JUST TO SET US ON THE DATES AGAIN, THE MEMO WAS DATED SEPTEMBER 2ND, 2014. YOUR OUTLINE FOR MR. -- FOR DR. KISSINGER WAS DATED SEPTEMBER 2ND, 2014; CORRECT?
DANIEL MOSLEY: YES, YES.
MR. WADE: AND DO YOU SEE THIS TO BE EMAIL CORRESPONDENCE STARTING ON THAT DATE, AND THEN IN SOME DAYS AFTER THAT IN SEPTEMBER OF 2014 RELATING TO THERANOS?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
JUDGE DAVILA: 4202?
MR. SCHENK: YOUR HONOR, IT'S BEEN DISPLAYED. I ASSUMED IT WAS ADMITTED.
MR. WADE: IF YOU GO TO THE BOTTOM OF THE EMAIL ON THE SECOND PAGE. DO YOU JUST RECALL THIS WAS THE EMAIL WHERE YOU FOLLOWED UP WITH MS. HOLMES AFTER YOU REVIEWED THE MATERIALS? DO YOU REMEMBER WE LOOKED AT A DIFFERENT VERSION OF THIS EARLIER?
DANIEL MOSLEY: YES. YES.
MR. WADE: OKAY. AND THEN IF WE CAN GO UP TO YOUR RESPONSE HERE, YOU SEND AN EMAIL ON SEPTEMBER 3RD TO MS. HOLMES. DO YOU SEE THAT?
DANIEL MOSLEY: I SEE IT.
MR. WADE: AND YOU NOTED THAT YOUR -- THAT MS. HOLMES WAS GOING TO BE SPEAKING AT BYRON TROTT'S CONFERENCE ON TUESDAY, SEPTEMBER 16TH IN CHICAGO?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: I WAS.
DANIEL MOSLEY: YES.
MR. WADE: AND YOU NOTED THAT HERE THAT IF -- YOU ALSO NOTED THAT MR. PENNER WAS GOING TO BE THERE; CORRECT?
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: YES, I DID NOTE THAT.
MR. WADE: OKAY. AND YOU SUGGESTED THAT MAYBE IT WOULD WORK TO SET UP A MEETING WITH THE WALTON FAMILY AT THE BDT CONFERENCE; CORRECT?
DANIEL MOSLEY: YES, I DID.
MR. WADE: OKAY. LET'S GO UP THIS CHAIN. DO YOU SEE THERE'S A RESPONSE FROM MS. HOLMES ABOUT THE FACT THAT SHE WAS ALSO GOING TO BE HOSTING A DINNER THERE? DO YOU SEE THAT?
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: HE'S THE FORMER CEO OF CLEVELAND CLINIC.
DANIEL MOSLEY: I BELIEVE SO.
DANIEL MOSLEY: I DID NOT.
MR. WADE: OKAY. AND IN ANY EVENT, THERE WAS FURTHER CORRESPONDENCE UP THIS CHAIN ABOUT FACILITATING A MEETING WITH GREG PENNER AND ROB WALTON; CORRECT?
DANIEL MOSLEY: CORRECT.
MR. WADE: AND DID YOU ACTUALLY THEN COME TO LEARN THAT ACTUALLY MR. PENNER WENT TO VISIT THERANOS EVEN BEFORE THE BDT CONFERENCE?
DANIEL MOSLEY: I DIDN'T KNOW THAT.
DANIEL MOSLEY: OR I MAY HAVE AT THE TIME, BUT I CERTAINLY DON'T HAVE ANY RECOLLECTION THAT HE DID, BUT I WOULDN'T BE SURPRISED. HE HAD ALREADY BEEN INTRODUCED TO ELIZABETH AND HE WAS FREE TO DO ANYTHING HE WANTED TO DO AFTER THAT OBVIOUSLY.
DANIEL MOSLEY: EXACTLY.
DANIEL MOSLEY: I PROBABLY DID. I DON'T -- YOU KNOW, I DON'T HAVE ANY PARTICULAR RECOLLECTION OF IT. I REALLY WASN'T TERRIBLY INVOLVED, BUT I SUSPECT THAT THEY WERE.
MR. WADE: OKAY. AND YOU WERE SETTING UP A MEETING WITH THE TWO OF THEM, BUT YOU UNDERSTOOD THAT MR. PENNER WAS BASED LOCALLY HERE IN SILICON VALLEY; CORRECT?
DANIEL MOSLEY: YES, I DO.
MR. WADE: OKAY. LET'S LOOK AT THE EMAIL UP AT THE TOP. AND DO YOU SEE IT SAYS THERE, MS. HOLMES REPORTS THAT SHE HAD A MEETING WITH MR. PENNER THERE AT THERANOS THAT WEEK?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: OKAY. AND DOES THAT REFRESH YOUR RECOLLECTION THAT YOU'RE AWARE THAT THERE WAS A MEETING?
DANIEL MOSLEY: YOU KNOW, I DON'T -- I DON'T REMEMBER IT, BUT I THINK THIS IS PROBABLY PRETTY GOOD EVIDENCE THAT THEY HAD MET, OR AT LEAST ELIZABETH WAS TELLING ME THAT THEY HAD MET ON THE 13TH.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: I THINK THIS MAY HAVE BEEN THE FIRST ONE THAT I HAD ATTENDED.
DANIEL MOSLEY: I WOULDN'T DESCRIBE IT THAT WAY. IT'S A SORT OF CONVENING OF GROUPS OF INDIVIDUALS AND FAMILIES THAT ARE ASSOCIATED WITH BDT FOR A CONFERENCE.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND IT WAS ACTUALLY -- IT WAS AT BDT WHERE YOU MET MS. HOLMES IN PERSON FOR THE FIRST TIME; IS THAT RIGHT?
DANIEL MOSLEY: THAT IS CORRECT.
DANIEL MOSLEY: IS THAT IN THE SAME VOLUME?
DANIEL MOSLEY: OKAY. THANK YOU. I SEE IT.
MR. WADE: AND TAKE A MINUTE TO REVIEW IT. YOU SEE THAT IT'S A MULTIPLE PAGE AGENDA FOR THE 2014 BDT CONFERENCE?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: YES, I DID. THIS IS THE ONE WE WERE JUST TALKING ABOUT.
MR. SCHENK: YOUR HONOR, RELEVANCE AND 403.
JUDGE DAVILA: WHAT'S -- I'M NOT CERTAIN OF THE RELEVANCE OF THIS.
MR. WADE: I'D BE HAPPY TO DO THIS NOW IN THE PRESENCE OF THE JURY, OR TO APPROACH. BUT IF YOUR HONOR LOOKS AT MANY OF THE ENTRIES, I THINK YOU'LL SEE THAT MANY OF THE PEOPLE WHO MR. MOSLEY WAS REPRESENTING SPOKE AT THE CONFERENCE, MR. MOSLEY SPOKE AT THE CONFERENCE, AND MS. HOLMES SPOKE AT THE CONFERENCE. AND THIS IS IN THE PERIOD WHERE THERE WERE MEETINGS AROUND THE BDT CONFERENCE, AND SO PEOPLE WHO ARE INVESTING ARE OBTAINING INFORMATION IN ADVANCE OF THE INVESTMENT DECISION AT THE CONFERENCE.
JUDGE DAVILA: MAYBE YOU SHOULD LAY THAT FOUNDATION FIRST.
DANIEL MOSLEY: YES. I THINK THEY WERE ON A PANEL --
DANIEL MOSLEY: -- DISCUSSION.
MR. WADE: OH, I'M SORRY. THEY WERE ON A PANEL DISCUSSION. IN FACT, MR. PENNER WAS ON TWO PANEL DISCUSSIONS; RIGHT?
DANIEL MOSLEY: YOU KNOW, I'D HAVE TO STUDY THIS, BUT -- LET ME SEE. I SEE ONE, AND I SEE A SECOND ONE, YES.
MR. WADE: OKAY. AND MS. HOLMES GAVE A -- SAT ON A PANEL DISCUSSION IN FRONT OF THE AUDIENCE AT THIS CONFERENCE; CORRECT?
DANIEL MOSLEY: I BELIEVE SHE DID. CAN YOU TELL ME WHAT PAGE THAT WAS?
DANIEL MOSLEY: OKAY.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: YES, I SEE THAT.
BY MR. WADE:
DANIEL MOSLEY: I DIDN'T RECALL THAT, BUT I'M JUST LOOKING DOWN A LIST HERE TO SEE IF HE'S LISTED. THERE WERE A LOT OF -- THERE WERE A LOT OF SMALL BREAKOUTS ON PARTICULAR SUBJECTS. SO AS YOU CAN SEE, THERE'S A LOT OF ENTRIES HERE.
DANIEL MOSLEY: PAGE 8. OKAY. YES, I DO SEE HIM LISTED ON A -- THIS WAS -- I SEE AT THE TOP OF PAGE 7 IT SAYS CURRENT BREAKOUT SESSIONS. THESE WERE LITTLE SESSIONS THAT PEOPLE COULD INDIVIDUALLY CHOOSE TO GO TO, AND IN SOME CASES THEY MIGHT ONLY HAVE TEN PEOPLE IN THERE.
MR. WADE: RIGHT. AND DO YOU RECALL THAT THERE WERE, ON THE AGENDA THERE WERE SOME PRIVATE BREAKOUT DINNERS THAT PEOPLE ATTENDED AS WELL IN THE EVENINGS?
DANIEL MOSLEY: I, I HAVE SOME RECOLLECTION OF THAT, BUT I WASN'T -- OBVIOUSLY I WASN'T INVOLVED IN SETTING ALL OF THIS UP. BUT I BELIEVE THERE WERE SOME -- I BELIEVE THAT THERE WERE INDIVIDUAL DINNERS THAT WERE SET UP FOR VARIOUS GROUPS OF PEOPLE.
DANIEL MOSLEY: I BELIEVE THAT -- I BELIEVE THAT GREG PENNER, ROB WALTON, AND I DON'T KNOW IF ANYBODY ELSE DID, BUT THEY MAY HAVE.
DANIEL MOSLEY: JERRY TUBERGEN WAS OBVIOUSLY THERE. I DON'T KNOW WHETHER ANYBODY ELSE WAS THERE.
MR. SCHENK: THE RELEVANCE OBJECTION WAS BASED ON ITS CONNECTION TO THERANOS OR THIS CASE.
JUDGE DAVILA: I'M GOING TO SUSTAIN THE OBJECTION FOR LACK OF FOUNDATION.
BY MR. WADE:
MR. WADE: DO YOU RECALL THAT MS. HOLMES WAS THERE SPEAKING ABOUT, SPEAKING ABOUT HER WORK AT THERANOS? DO YOU RECALL THAT, SIR?
DANIEL MOSLEY: I DO RECALL SHE WAS THERE, AND I DO KNOW SHE PARTICIPATED IN A PANEL.
DANIEL MOSLEY: YES, I BELIEVE IT WAS.
MR. WADE: AND THAT'S THE PART WHERE THE PEOPLE WOULD COME TO CONVENE FOR THE MAIN SESSIONS OF THE CONFERENCE?
DANIEL MOSLEY: I THINK THAT'S WHERE THE BIGGER SESSIONS WERE HELD.
JUDGE DAVILA: I DON'T SEE ANY RELEVANCE TO THE ENTIRETY OF THE DOCUMENT. IF YOU'RE TRYING TO ESTABLISH THAT MS. HOLMES SPOKE AT THIS EVENT, YOU CAN DO THAT WITHOUT THE ENTIRETY OF THE DOCUMENT. THERE ARE OTHER BREAKOUTS AND OTHER SESSIONS INVOLVED HERE THAT HAVE NOTHING TO DO, AT LEAST THERE'S NO FOUNDATION YET --
JUDGE DAVILA: -- AS TO WHAT THEY HAVE TO DO. THE FACT THAT MS. HOLMES WAS AT THIS CONFERENCE AND SPOKE, THAT MAY HAVE SOME RELEVANCE. THE FACT THAT OTHER INVESTORS WERE AT THIS CONFERENCE AND ATTENDED THE REFERENCE, I JUST DON'T SEE THE RELEVANCE YET. ARE YOU GOING TO GO THROUGH EVERY INVESTOR AND ASK TO SEE WHERE THEY VISITED AND WHAT CONFERENCE THEY ATTENDED? IF IT RELATES TO THEIR INVESTMENT DECISION IN REGARDS TO THE COMPANY AND WHETHER OR NOT THEY WERE VICTIMS AND WHETHER OR NOT THEY MADE DECISIONS BASED ON WHAT THEY HEARD THERE, THAT'S A DIFFERENT THING. BUT FOR NOW, MR. WADE, I DON'T SEE IT FOR THE ENTIRETY OF THE DOCUMENT TO COME IN. YOU ESTABLISHED THAT THERE WAS A CONFERENCE AND YOUR CLIENT WAS AT THE CONFERENCE AND SHE SPOKE, AND I DON'T THINK YOU NEED THE DOCUMENT IN FOR THAT. AND PARDON ME FOR ME ANSWERING IN A SPEAKING ANSWER LIKE THIS, BUT I JUST WANTED TO GIVE YOU MY THOUGHTS AND GUIDANCE ON THE TOTALITY OF THE DOCUMENT. I THINK THERE'S RELEVANCE ISSUES AS TO THE ENTIRETY OF THE DOCUMENT THAT INCLUDES OTHER BREAKOUTS, OTHER SPEAKERS.
MR. WADE: OKAY. COULD I ASK THE COURT IF WE COULD PRODUCE A REDACTED FORM OF THE VERSION THAT REFERENCES MS. HOLMES'S SPEECH ON THE MAIN STAGE?
JUDGE DAVILA: LET'S SEE. I THINK THAT'S ON PAGE 3 OF THE DOCUMENT.
JUDGE DAVILA: YES, IT'S TRIAL EXHIBIT 1938, PAGE 3.
JUDGE DAVILA: AND IF YOU WANT TO REDACT AND SHOW THAT BETWEEN 8:05 AND 9:05, YOUR CLIENT APPEARED ON A PANEL WITH OTHERS ENTITLED GAME CHANGERS.
JUDGE DAVILA: SURE. I THINK SO.
MR. WADE: AND WHILE WE'RE PULLING THAT UP, MR. MOSLEY, AT THE BDT CONFERENCE, IT'S HELD WITHIN A THEATRE; CORRECT?
DANIEL MOSLEY: NO. I THINK I -- I THINK WHAT I POINTED OUT THAT THERE WERE -- MY MEMORY OF IT, THERE WERE SOME SESSIONS IN THE THEATRE AND THERE WERE SOME SESSIONS IN BREAKOUT ROOMS. YOU'VE ALREADY POINTED OUT THERE WERE SOME DINNERS.
DANIEL MOSLEY: SO IT'S A COMBINATION OF DIFFERENT ACTIVITIES.
MR. WADE: OKAY. AND THE MAIN -- WHEN THE CONFERENCE WOULD START IN THE MORNING, A LOT OF PEOPLE WOULD START IN THE FEINBERG THEATRE AND THERE WOULD BE GREETINGS AND THEN THERE WOULD BE SOME MAIN STAGE PRESENTATIONS. IS THAT NOT RIGHT?
DANIEL MOSLEY: YOU KNOW, I REALLY WASN'T THAT DEEPLY INVOLVED, BUT I THINK THE BIGGER SESSIONS WERE IN THE THEATRE IS MY RECOLLECTION.
MR. WADE: OKAY. AND DO YOU RECALL THAT MS. HOLMES GAVE A PRESENTATION IN THE THEATRE AT THAT CONFERENCE?
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I HAVE NO IDEA.
DANIEL MOSLEY: I DON'T KNOW.
MR. WADE: OKAY. DO YOU KNOW WHETHER ANY OF YOUR OTHER CLIENTS WHO CONSIDERED THERANOS INVESTMENTS ATTENDED THAT?
DANIEL MOSLEY: I REALLY DON'T KNOW.
MR. WADE: OKAY. AND IN CONNECTION WITH THIS PRESENTATION, I THINK WE TALKED ABOUT THE DINNER, AND I BELIEVE YOUR TESTIMONY WAS THAT YOU DID NOT ATTEND A DINNER WITH MS. HOLMES AND DR. COSGROVE?
DANIEL MOSLEY: I DID NOT.
DANIEL MOSLEY: I HAVE NO IDEA.
MR. WADE: OKAY. BY THE WAY, DO YOU RECALL MR. ELKANN ALSO ATTENDING THE BDT CONFERENCE IN SEPTEMBER OF 2014?
DANIEL MOSLEY: I DON'T. I'M NOT SURE AT THIS POINT THAT I EVER MET HIM, SO...
MR. WADE: OKAY. DO YOU RECALL THAT MR. HANK SLACK FROM THE OPPENHEIMER FAMILY HAD ATTENDED THE BDT CONFERENCE?
DANIEL MOSLEY: I DON'T. I NEVER MET HIM UP UNTIL THIS POINT, SO I HAVE NO IDEA WHETHER HE ATTENDED.
MR. WADE: FAIR ENOUGH. AT THE BDT CONFERENCE, YOU ENDED UP HAVING -- PARTICIPATING IN THREE MEETINGS THAT INVOLVED SOME OF YOUR CLIENTS. DO YOU RECALL THAT?
DANIEL MOSLEY: I THINK THAT'S RIGHT.
MR. WADE: OKAY. AND I THINK I NEGLECTED TO ASK YOU, THE COX FAMILY WAS ALSO IN ATTENDANCE AT THE 2014 CONFERENCE; RIGHT?
DANIEL MOSLEY: I BELIEVE AT LEAST -- YOU KNOW, I BELIEVE AT LEAST ONE MEMBER AND THEN ONE PERSON FROM THE COMPANY ATTENDED.
DANIEL MOSLEY: I SHOULD SAY I DON'T KNOW WHETHER A PERSON ATTENDED FROM THE COMPANY. I SHOULD SAY I ONLY KNOW ONE PERSON WHO ATTENDED FROM THE FAMILY.
DANIEL MOSLEY: YES, IT WAS.
MR. WADE: AND ALEX TAYLOR WAS A PERSON WITH WHOM YOU ARRANGED -- YOU PARTICIPATED IN A MEETING WITH MS. HOLMES; CORRECT?
DANIEL MOSLEY: YEAH, I HAD A MEETING TO INTRODUCE ALEX TO ELIZABETH.
MR. WADE: OKAY. AND WAS THIS A MEETING THAT HAPPENED SORT OF IN A VENUE ADJACENT TO THE CONFERENCE?
DANIEL MOSLEY: I DON'T REMEMBER.
DANIEL MOSLEY: I THINK I JUST REMEMBER -- THE ONLY THING I REALLY REMEMBER WAS THAT ELIZABETH SPOKE AND DESCRIBED THE COMPANY AND WHAT SHE WAS TRYING TO ACCOMPLISH FOR ALEX SO HE COULD HAVE AN UNDERSTANDING.
DANIEL MOSLEY: IT WAS AN INTRODUCTION, YES.
DANIEL MOSLEY: THAT IS CORRECT.
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND DO YOU RECALL IN ADVANCE OF THAT MEETING THAT YOU SENT MR. TUBERGEN A COPY OF THE "FORTUNE" ARTICLE THAT HAD BEEN PUBLISHED RELATING TO MS. HOLMES?
DANIEL MOSLEY: IT'S POSSIBLE, BUT I CERTAINLY DON'T REMEMBER.
MR. WADE: OKAY. LET'S TAKE A LOOK AT 12751. I'M SORRY -- YEAH, 1 -- THE COURT'S INDULGENCE FOR ONE SECOND. LET ME MAKE SURE I GET THE RIGHT NUMBER.
(PAUSE IN PROCEEDINGS.)
DANIEL MOSLEY: OKAY.
BY MR. WADE:
MR. WADE: AND DO YOU SEE UP ON THE SCREEN, OR IN THE BOOK, WHICHEVER IS EASIER FOR YOU, THAT YOU SENT MR. TUBERGEN A COPY OF THE "FORTUNE" ARTICLE IN ADVANCE OF THE MEETING THAT YOU HAD WITH MS. HOLMES?
DANIEL MOSLEY: YEAH. I'M ASSUMING THAT. IT SAYS THERANOS.PDF AND -- AND IT SAYS COVER STORY FROM "FORTUNE," SO I'M ASSUMING THAT'S WHAT WAS ATTACHED, YES.
DANIEL MOSLEY: OF THIS?
DANIEL MOSLEY: I DON'T REMEMBER WHETHER I GOT IT FROM DR. KISSINGER OR I GOT IT OUT OF "FORTUNE" MAGAZINE. I HAVE NO RECOLLECTION.
DANIEL MOSLEY: I CERTAINLY HAD GOTTEN THE ARTICLE AND READ THE ARTICLE, YES.
MR. WADE: OKAY. AND YOU HAD READ THE ARTICLE AT SOME POINT AFTER YOUR OUTLINE, BUT BEFORE THE BDT CONFERENCE; IS THAT FAIR?
DANIEL MOSLEY: I, I CAN'T PICK THE TIME AT WHICH I READ THE ARTICLE.
MR. WADE: FAIR ENOUGH. LET'S GO TO THE FIRST PAGE OF THE ARTICLE THAT SAYS, "NEW BLOOD." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. AND YOU RECOGNIZE THAT THIS WAS SOMETHING OF A PORTRAYAL OF MS. HOLMES AND HER MISSION WITH RESPECT TO THERANOS; CORRECT?
DANIEL MOSLEY: I DIDN'T QUITE UNDERSTAND WHAT YOU -- HOW YOU CHARACTERIZED IT.
MR. WADE: MAYBE I DIDN'T CHARACTERIZE IT WELL. THIS ARTICLE TALKED ABOUT MS. HOLMES AND HER VISION AT THERANOS; CORRECT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND IF YOU LOOK AT THAT FIRST PAGE, YOU SEE THAT IN THE TEXT THERE THAT IT -- LET'S BLOW THAT UP SO WE'RE SURE THE JURY CAN SEE THAT. YOU SEE IT TALKS ABOUT HOW SHE FOUNDED THIS COMPANY AS A 19-YEAR-OLD SOPHOMORE AT STANFORD. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE REFERENCES TO HER INTERACTIONS WITH A CHEMICAL ENGINEERING PROFESSOR AT STANFORD NAMED CHANNING ROBERTSON?
DANIEL MOSLEY: I SEE THAT REFERENCE.
DANIEL MOSLEY: YES, I ASSUME THAT'S THE REASON FOR IT, YES.
MR. WADE: AND IF YOU CAN CONTINUE ON PAGE 3 OF THE ARTICLE. AND IF WE CAN JUST BLOW UP, IN THE LEFT-HAND COLUMN, THE FIRST COUPLE OF PARAGRAPHS. IT TALKS ABOUT SOME OF THE WORK THAT SHE DID THERE AND THEN THE FOUNDING OF THE COMPANY. DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE IT.
DANIEL MOSLEY: VERY COMPELLING.
MR. WADE: OKAY. AND IF YOU LOOK IN THE PARAGRAPH, THERE'S DISCUSSION WITH PROFESSOR ROBERTSON ABOUT HIS OBSERVATIONS OF MS. HOLMES WHEN SHE WAS 19 YEARS OLD; CORRECT?
DANIEL MOSLEY: YOU'RE TALKING ABOUT THE SECOND PARAGRAPH THAT SAYS, "I REMEMBER HER SAYING"?
MR. WADE: YEAH. JUST GENERALLY, YOU SEE PROFESSOR ROBERTSON IS PROVIDING HIS VIEWS OF MS. HOLMES AS A TEENAGER JUST IN COLLEGE. DO YOU SEE THAT?
DANIEL MOSLEY: YEAH, AND IT SAYS, "AND I KIND OF KICKED MYSELF. I'D CONSULTED IN THIS AREA FOR 30 YEARS, BUT I'D NEVER SAID, HERE, WE CAN MAKE ALL OF THESE GIZMOS THAT MEASURE" -- YES, I SEE THAT.
MR. WADE: HE HAD BEEN WORKING IN THE AREA FOR 30 YEARS, BUT AS A 19-YEAR-OLD, SHE CAME UP WITH AN IDEA THAT HE HAD NEVER THOUGHT OF. DO YOU SEE THAT?
DANIEL MOSLEY: I -- YOU KNOW, I CAN'T TELL YOU WHAT HE THOUGHT OF AND HAD NOT THOUGHT OF.
DANIEL MOSLEY: I SEE HIS QUOTE.
MR. WADE: AND IF WE GO DOWN A COUPLE OF PARAGRAPHS, IN THE PARAGRAPH THAT STARTS, "THAT CLINCHED IT FOR HIM," AND BLOW THAT UP. IT TALKS ABOUT WHEN HE FINALLY CONNECTED -- "WHEN I FINALLY CONNECTED WITH WHAT ELIZABETH FUNDAMENTALLY IS" --
DANIEL MOSLEY: RIGHT.
MR. WADE: HE SAYS, "I REALIZED THAT I COULD HAVE JUST AS WELL BEEN LOOKING INTO THE EYES OF A STEVE JOBS OR BILL GATES." DO YOU SEE THAT?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I DON'T KNOW MR. ROBERTSON, BUT I BELIEVE THAT'S WHAT HE WAS, YES.
DANIEL MOSLEY: A VERY COMPELLING STORY.
MR. WADE: YEAH. AND IF WE CAN JUMP TO PAGE 4, THE RIGHT-HAND COLUMN, AND BLOW UP THAT FIRST PARAGRAPH. YOU SEE THERE THE WALGREENS CEO, GREG WASSON, IS REFERENCED?
DANIEL MOSLEY: YES.
MR. WADE: AND THIS IS IN CONNECTION WITH THE MOST IMPORTANT COMMERCIAL RELATIONSHIP THAT THERANOS HAS AT THAT TIME; RIGHT?
DANIEL MOSLEY: CERTAINLY FOR RETAIL DISTRIBUTION OF THEIR EQUIPMENT, YES.
MR. WADE: YEAH. AND HE TALKS ABOUT, IN THIS ARTICLE, HOW HE HOPES TO EVENTUALLY PUT THEM IN THE PHARMACIES OF THE COMPANY'S EUROPEAN CHAINS AS WELL; RIGHT? DO YOU SEE THAT?
DANIEL MOSLEY: YES, THEIR EUROPEAN PARTNER, ALLIANCE BOOTS.
MR. WADE: YEAH. AND IF YOU GO DOWN -- AND YOU LEARNED FROM THIS ARTICLE ABOUT SOME WORK IN CONNECTION WITH UCSF. DO YOU RECALL THAT?
DANIEL MOSLEY: I SEE THAT. I SEE THAT IT DISCUSSES UCSF, YES.
MR. WADE: AND DO YOU SEE THE CEO OF UCSF IS QUOTED IN THE ARTICLE THERE, AND HE TALKS ABOUT HOW THIS IS THE TRUE TRANSFORMATION OF HEALTH CARE RIGHT HERE IN FRONT OF US; RIGHT?
DANIEL MOSLEY: I SEE THAT.
MR. WADE: AND WAS -- IS IT FAIR TO SAY THAT THIS WAS A PRETTY IMPACTFUL ARTICLE WHEN YOU READ IT AT THE TIME?
DANIEL MOSLEY: YES, IT WAS VERY IMPORTANT.
MR. WADE: YEAH. AND IF WE CAN GO TO -- IF YOU LOOK AT THE BOTTOM, AND DO YOU SEE THE QUOTE THAT STARTS AT THE BOTTOM, IT SAYS, "THE FIRST TIME I HEARD ABOUT THIS, I THOUGHT IT WAS SNAKE OIL," AND WE'LL CONTINUE UP, "AND MIRRORS." AND IF WE CAN BLOW UP THE PARAGRAPH UP ON THE TOP. DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND THAT'S A QUOTE FROM THE CHIEF OF ORTHOPEDIC TRAUMA AT THE HOSPITAL FOR SPECIAL SURGERY IN MANHATTAN?
DANIEL MOSLEY: I SEE THAT.
MR. WADE: DO YOU SEE THAT? AND THEN IT NOTES THAT, "BUT AFTER REVIEWING VOLUMINOUS VALIDATION STUDIES SUPPLIED TO HIM BY THE COMPANY, HE HAS BECOME A BELIEVER AND IS URGING HIS HOSPITAL TO CONSIDER ADOPTION." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: OKAY. AND IF WE LOOK AT THE LITTLE PIECE THAT FOLLOWS THAT. DR. HELFET SAYS THERE, "IT'S REAL DATA, HE SAYS. IT'S NOT THEIR INTERPRETATION." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: THAT'S AN IMPORTANT STATEMENT.
MR. WADE: AND IF WE CAN GO TO PAGE 6 OF THE ARTICLE, AND IF WE CAN BLOW UP THE PARAGRAPH THAT SAYS, "THERANOS" KIND OF IN THE MIDDLE OF THE FIRST COLUMN. I'M SORRY, NOT THAT. I HAVE THE WRONG PARAGRAPH. IF I CAN GO TO PAGE 7, AND IN THE RIGHT-HAND COLUMN WITH THE "SHE LOOKS LIKE 19." DO YOU SEE THAT? OKAY. AND DO YOU SEE THERE DR. KISSINGER, YOUR CLIENT, IS QUOTED?
DANIEL MOSLEY: OKAY. NOW WHAT -- THIS IS ON PAGE 7?
MR. WADE: SURE. IT'S ON THE SCREEN, BUT IT'S ON THE BOTTOM OF PAGE 7 OF 9 IN THE RIGHT-HAND COLUMN. DO YOU SEE DR. KISSINGER IS QUOTED IN THIS ARTICLE AS WELL?
DANIEL MOSLEY: I SEE HE IS. I SEE HE'S QUOTED, YES.
DANIEL MOSLEY: ENORMOUS RESPECT.
DANIEL MOSLEY: YES.
MR. WADE: AND HE SAID "ASKED TO ASSESS HER AS A LEADER - BECAUSE HE'S SEEN A FEW." AND YOU THOUGHT THAT WAS A FAIR STATEMENT; CORRECT?
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: HE WAS 91, YES.
MR. WADE: AND HE HAD DONE WORK FOR, YOU KNOW, PRESIDENTS AND MANY PROMINENT PEOPLE IN THE WORLD; CORRECT?
DANIEL MOSLEY: HE HAD BEEN THE SECRETARY OF STATE.
MR. WADE: YES. AND THERE HE SAYS, "ASKED TO ASSESS HER AS A LEADER -- BECAUSE HE'S SEEN A FEW -- HE RESPONDS, I CAN'T COMPARE HER TO ANYONE ELSE BECAUSE I HAVEN'T SEEN ANYONE WITH HER SPECIAL ATTRIBUTES. SHE HAS IRON WILL, STRONG DETERMINATION. BUT NOTHING DRAMATIC. THERE IS NO PERFORMANCE ASSOCIATED WITH HER. I HAVE SEEN NO SIGN THAT FINANCIAL GAIN IS OF ANY INTEREST TO HER. SHE'S LIKE A MONK. SHE ISN'T FLASHY. SHE WOULDN'T WALK INTO A ROOM AND TAKE IT OVER. BUT SHE WOULD ONCE THE SUBJECT GETS TO HER FIELD." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: IT'S VERY COMPLIMENTARY.
MR. SCHENK: OBJECTION. COUNSEL IS TESTIFYING NOW.
JUDGE DAVILA: CLOSE TO IT. WHY DON'T YOU ASK YOUR NEXT QUESTION?
BY MR. WADE:
MR. WADE: IF WE CAN GO TO PAGE 9 AND BLOW UP THE PARAGRAPH IN THE RIGHT-HAND COLUMN THAT SAYS, "ALTHOUGH." IT SAYS, "ALTHOUGH I BELIEVE" -- I'M SORRY. IN THE BOTTOM THERE. "THERE ARE PIECES OF THE PUZZLE WE HAVEN'T SEEN YET." DO YOU SEE THAT?
DANIEL MOSLEY: JUST ONE SECOND PLEASE. YES, THERE ARE PIECES, RIGHT.
DANIEL MOSLEY: I DO SEE WHERE IT SAYS THAT.
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: "WHILE IN OTHERS SHE MAY JUST BE WAITING, LIKE STEVE JOBS, TO FINISH PERFECTING HER NEXT PRODUCT BEFORE UNVEILING IT WITH A FLOURISH." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND DID YOU UNDERSTAND AT THE TIME THAT THE COMPANY WAS WORKING ON MULTIPLE FUTURE ITERATIONS OF ITS PRODUCT?
DANIEL MOSLEY: I DID.
MR. WADE: AND IN THIS ARTICLE, IN SHARING IT, YOU THOUGHT THIS WOULD BE A GOOD INTRODUCTORY PIECE OR A QUICK READ TO GIVE MR. TUBERGEN SOME FAMILIARITY; IS THAT FAIR?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND AGAIN, THE MEETING WITH MR. TUBERGEN, THAT WAS AT THAT POINT KIND OF AN INTRODUCTORY MEET AND GREET; IS THAT FAIR?
DANIEL MOSLEY: YEAH, IT WAS A PERSONAL INTRODUCTION OF JERRY TO ELIZABETH.
MR. WADE: JUST MORE CASUALLY ACROSS THE TABLE AS OPPOSED TO A SLIDE PRESENTATION OR ANYTHING LIKE THAT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND WOULD IT BE FAIR TO DESCRIBE YOU ALSO PARTICIPATED IN A MEETING LIKE THAT WITH MR. TAYLOR?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: YES.
MR. WADE: OKAY. DO YOU RECALL WHETHER YOU SENT MR. TAYLOR A COPY OF THE "FORTUNE" ARTICLE IN ADVANCE?
DANIEL MOSLEY: I DON'T RECALL.
MR. WADE: OKAY. AND DO YOU RECALL WHETHER YOU SENT A COPY OF THE "FORTUNE" ARTICLE EITHER TO MR. PENNER OR MR. WALTON?
DANIEL MOSLEY: I DON'T REMEMBER, BUT I SUSPECT THAT THEY HAD ALREADY READ THE ARTICLE.
MR. WADE: OKAY. DO YOU KNOW, DO YOU KNOW THAT MANY OF THOSE PEOPLE, THOSE CLIENTS WHO PARTICIPATED IN THOSE MEETINGS CAME OUT OF THOSE MEETINGS VERY INTERESTED IN INVESTING IN THERANOS?
DANIEL MOSLEY: I COULDN'T TELL YOU EXACTLY WHAT THEY WERE THINKING, BUT I WOULD SUSPECT THAT THEY WERE VERY IMPRESSED, AS WAS I OBVIOUSLY.
MR. WADE: OKAY. AND YOU HAD THE -- YOU CONTINUED TO HAVE INTERACTIONS DURING THE FALL WITH THOSE CLIENTS RELATING TO THERANOS; CORRECT?
DANIEL MOSLEY: YOU KNOW, I DON'T REMEMBER SPECIFICALLY, BUT I SUSPECT GIVEN THAT I WAS TALKING TO THESE INDIVIDUALS FROM TIME TO TIME THAT THEY WOULD SAY, WE'RE DOING OUR WORK ON THERANOS OR -- AND THEY MAY HAVE TOLD ME THINGS FROM TIME TO TIME. BUT I DON'T HAVE ANY SPECIFIC RECOLLECTION.
MR. WADE: AND IF I COULD JUST ORIENT US A BIT. YOUR HONOR, MAY I PASS UP A DEMONSTRATIVE WHICH I'VE SHARED WITH THE GOVERNMENT? AND I THINK THE GOVERNMENT HAS NO OBJECTION TO MY USING IT WITH THE WITNESS.
JUDGE DAVILA: YES.
MR. SCHENK: THAT'S CORRECT.
JUDGE DAVILA: ALL RIGHT.
JUDGE DAVILA: SURE.
BY MR. WADE:
MR. WADE: DO YOU SEE HERE, MR. MOSLEY, I SET ON THE SCREEN JUST A CALENDAR THAT SETS FORTH THE MONTHS FROM JULY 2014 TO DECEMBER 2014?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND I JUST WANT TO NOTE, I THINK WE SAID YOUR INITIAL CALL WITH MS. HOLMES WAS ON JULY 21ST; IS THAT RIGHT?
DANIEL MOSLEY: YOU KNOW, I DON'T REMEMBER THE EXACT DATE, BUT THAT'S -- IT'S IN THAT RANGE.
DANIEL MOSLEY: I THINK THAT'S RIGHT.
MR. WADE: AND I THINK YOU SAID YOU REVIEWED, YOU REVIEWED THE MATERIALS OVER THE WEEKEND BEFORE YOU FINALIZED THAT OUTLINE ON SEPTEMBER 2ND; CORRECT?
DANIEL MOSLEY: I THINK THAT'S CORRECT.
MR. WADE: OKAY. SO SEPTEMBER 2ND IS HERE (INDICATING). AND THEN THE BDT CONFERENCE THAT YOU WERE AT, THAT WAS A THREE-DAY CONFERENCE, WAS IT NOT?
DANIEL MOSLEY: I DON'T REMEMBER SPECIFICALLY, BUT IT WAS AT LEAST TWO DAYS. BUT IT MAY HAVE BEEN THREE DAYS. I WASN'T IN CHARGE.
DANIEL MOSLEY: I WAS JUST AN ATTENDEE.
DANIEL MOSLEY: YES, IT WAS.
DANIEL MOSLEY: IT WAS IN THAT RANGE BECAUSE I THINK ELIZABETH SPOKE ON THE 16TH.
DANIEL MOSLEY: AND I MAY BE WRONG, BUT I THINK THAT WAS THE DATE.
MR. WADE: OKAY. AND WHY DON'T I CIRCLE IT. AND DO YOU RECALL IN THIS WINDOW HERE THERE WERE ALSO SOME MEETINGS WITH MR. -- WITH YOUR CLIENTS? DO YOU RECALL THAT?
DANIEL MOSLEY: THAT -- YOU KNOW, WE HAD JUST GONE THROUGH THAT. I INTRODUCED HER TO SEVERAL OF MY CLIENTS, YES.
MR. WADE: YES, YES. AND I THINK ON DIRECT YOU HAD TALKED ABOUT THE FACT THAT YOUR PERSONAL INVESTMENT DECISION WAS MADE AT THE END OF OCTOBER; CORRECT?
DANIEL MOSLEY: IN THAT -- SOMEWHERE BETWEEN DURING LATE SEPTEMBER AND OCTOBER.
MR. WADE: OKAY. AND WE CAN COME BACK AND REFRESH THAT, BUT DO YOU RECALL THAT THE WIRE TRANSFER THAT MR. SCHENK SHOWED YOU WENT OUT ON OR ABOUT HALLOWEEN OF 2014?
DANIEL MOSLEY: I THINK THAT'S RIGHT. I'D HAVE TO LOOK BACK AT IT AGAIN TO PICK THE EXACT DATE.
DANIEL MOSLEY: OKAY. OKAY.
MR. WADE: AND SO AFTER THIS POINT IN TIME WHERE YOU PREPARED THE MEMO, YOU CONTINUE TO GET INFORMATION AND LEARN MORE ABOUT THERANOS; RIGHT?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND I'M GOING TO GO THROUGH AND SHOW YOU SOME DOCUMENTS. IN THIS PERIOD HERE BETWEEN, BETWEEN THE 2ND AND YOUR INVESTMENT, THERE WERE -- THERE WERE A COUPLE OF TRIPS TO THERANOS AS WELL?
DANIEL MOSLEY: THERE WERE.
DANIEL MOSLEY: INCREMENTALLY, YES.
DANIEL MOSLEY: IS THAT IN THE SAME VOLUME?
DANIEL MOSLEY: OH, I HAVE IT. I HAVE IT.
MR. WADE: -- AND I BELIEVE IT'S IN EVIDENCE. COULD WE PUBLISH THAT? YOU MAY NEED TO FLIP THE SWITCH, MS. KRATZMANN. THANK YOU. OKAY. AND IF WE CAN GO TO THE SECOND PAGE AND BLOW UP THE EMAIL AT THE TOP. THIS -- HERE THERE'S A NOTE THAT YOU HAD FOLLOWED UP TO GET THE CDA SIGNED WITH THE COX AND DEVOS FAMILIES; CORRECT?
DANIEL MOSLEY: I'M TRYING TO FIND THE REFERENCES TO THE CONFIDENTIAL DISCLOSURE AGREEMENTS. YOU'RE TALKING IN THE FIRST, THE TOP EMAIL ON --
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: THAT'S CORRECT.
MR. WADE: OKAY. AND HERE IT SAYS -- YOU LET MS. HOLMES KNOW THAT YOU'RE FOLLOWING UP TO GET THE CDA SIGNED BY THE COX, TUBERGEN, AND DEVOS FAMILIES; CORRECT?
DANIEL MOSLEY: THE COX AND THE DEVOS FAMILIES. JERRY TUBERGEN JUST WORKED FOR THE DEVOS FAMILY.
MR. WADE: THANK YOU. AND IT NOTES THAT YOU'VE SUGGESTED THAT BOTH SIGN AND GET IT FORWARDED TO HER; CORRECT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. AND DOES THIS INDICATE THAT, TO YOU AT THIS TIME THAT THERE HADN'T BEEN A LOT OF DETAILED CONFIDENTIAL INFORMATION THAT WAS SHARED YET, THOSE MEETINGS WERE JUST PRELIMINARY MEET AND GREETS; RIGHT?
DANIEL MOSLEY: THEY WERE JUST INTRODUCTIONS.
MR. WADE: OKAY. AND DO YOU SEE THE NEXT SENTENCE THERE, IT SAYS, "THEY HAVE BOTH CALLED TO SAY HOW EXCITED THEY ARE TO BE CONSIDERED AS POSSIBLE INVESTORS IN THERANOS." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: OKAY. AND COMING OUT OF THE BDT CONFERENCE -- AND, AGAIN, I DON'T WANT THE SUBSTANCE -- BUT YOU HAD SOME TELEPHONIC COMMUNICATIONS WITH CLIENTS; CORRECT?
DANIEL MOSLEY: WELL, BASED ON THIS, I ASSUME THEY CALLED ME AND SAID, YES, WE WOULD LIKE TO TAKE A LOOK AT THIS.
DANIEL MOSLEY: RIGHT.
MR. WADE: -- BUT THERE WAS SOME FOLLOW-UP THAT YOU PARTICIPATED IN COMING OUT OF THOSE MEETINGS; CORRECT?
DANIEL MOSLEY: YEAH. IT INDICATES THAT THEY BOTH HAD CALLED ME AND SAID THAT THEY WERE EXCITED ABOUT THE OPPORTUNITY.
DANIEL MOSLEY: RIGHT.
DANIEL MOSLEY: I DON'T RECALL.
MR. WADE: OKAY. FAIR ENOUGH. LET'S GO UP TO THE NEXT EMAIL IN THE CHAIN. JUST QUICKLY. SHE ACKNOWLEDGES THIS AND OFFERS TO HAVE YOU OUT TO CALIFORNIA AND SAYS THAT YOU'RE WELCOME THERE; CORRECT?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. LET'S GO UP AND LOOK AT YOUR RESPONSE. AND DO YOU SEE THERE'S A REFERENCE IN THE FIRST PARAGRAPH ABOUT SETTING UP A MEETING WITH ANDREAS AND THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: YES.
MR. WADE: AND SO YOU WERE WORKING WITH THOSE FOLKS TO GET SOMETHING SET UP TO GO OUT TO CALIFORNIA?
DANIEL MOSLEY: I WAS WORKING TO MAKE AN INTRODUCTION TO THEM SINCE THEY HADN'T OBVIOUSLY BEEN INTRODUCED AT THE BDT CONFERENCE.
MR. WADE: RIGHT. RIGHT. AND THEN IN THE NEXT SENTENCE -- I'M SORRY, THE NEXT PARAGRAPH YOU NOTE THAT GREG PENNER IS WORKING ON ANOTHER DATE WITH HIS TEAM AS WELL. DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: YES.
MR. WADE: AND THEN IN THE NEXT SENTENCE YOU REFER TO THE COX FAMILY, AND YOU DON'T KNOW IF THEY HAVE A DATE, BUT YOU'VE BEEN HAVING SOME DISCUSSIONS WITH THE COX FAMILY ABOUT THERANOS; CORRECT?
DANIEL MOSLEY: YEAH.
DANIEL MOSLEY: WELL, IT SAID I HAD A DISCUSSION ABOUT THEM COMING OUT TO SEE ELIZABETH IN CALIFORNIA.
MR. WADE: FAIR ENOUGH. AND THEN YOU MENTION THAT YOU HAD ALSO, YOU SEE, TALKED WITH DR. KISSINGER ABOUT A COUPLE OF OTHER FAMILIES --
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, I DO SEE THAT.
MR. WADE: OKAY. AND YOU MENTION WITHIN THERE THE POSSIBILITY THAT YOU MIGHT SHARE A MEMO THAT YOU PREPARED?
DANIEL MOSLEY: THAT'S THE MEMO THAT WE ALREADY DISCUSSED.
MR. WADE: RIGHT. AND YOU JUST WANTED TO ASSURE MS. HOLMES THAT IF YOU WERE GOING TO DISCLOSE THE MEMO, THAT YOU'D GET A CDA BEFORE YOU SHARED IT; CORRECT?
DANIEL MOSLEY: THIS WAS A QUESTION ABOUT DR. KISSINGER SENDING THAT MEMO ON TO OTHER FAMILIES.
DANIEL MOSLEY: AND HE SAID -- HE HAD ASKED ME WHETHER I WAS COMFORTABLE WITH IT. AND THEN I SAID, YES, IF THEY FIRST HAD BEEN CLEARED BY THERANOS AND ELIZABETH.
MR. WADE: RIGHT. AND AS YOU SIT HERE, YOU DON'T KNOW WHETHER HE ACTUALLY COMMUNICATED THAT TO OTHER PEOPLE?
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. AND IF WE JUST GO UP THE CHAIN, THIS IS SEPTEMBER 28TH, DO YOU SEE THERE'S A NOTE THAT GREG WAS GOING TO BE GOING TO THERANOS THAT WEEK?
DANIEL MOSLEY: YES. THIS IS ELIZABETH TELLING ME THAT I GUESS SHE HAD SET UP A TIME FOR GREG TO GO TO THERANOS THAT WEEK.
DANIEL MOSLEY: I UNDERSTOOD IT TO BE A REFERENCE TO GREG PENNER.
DANIEL MOSLEY: THAT'S WHAT ELIZABETH SAID IN THE EMAIL, AND I UNDERSTOOD THAT TO BE JERRY TUBERGEN.
DANIEL MOSLEY: I'M THERE.
MR. WADE: DO YOU SEE THAT? AND DO YOU RECOGNIZE THIS TO BE EMAIL CORRESPONDENCE IN LATE SEPTEMBER BETWEEN YOU AND MS. HOLMES WITH RESPECT TO THERANOS INVESTMENT MATTERS?
DANIEL MOSLEY: YES, IT IS A SERIES OF EMAILS IN LATE SEPTEMBER.
DANIEL MOSLEY: I'M SORRY. YES, IT IS -- IT DOES APPEAR TO BE A SERIES OF EMAILS BETWEEN ME AND ELIZABETH, AND THEY ALL APPEAR TO BE SEPTEMBER THE 25TH THROUGH SEPTEMBER THE 29TH.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14149 WAS RECEIVED IN EVIDENCE.)
DANIEL MOSLEY: YES.
MR. WADE: THIS IS AN EMAIL WHERE YOU'RE TRYING TO ARRANGE A TRIP FOR MEMBERS OF THE NIARCHOS FOUNDATION TO MEET WITH MS. HOLMES?
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: DRACOPOULOS.
MR. WADE: DRACOPOULOS -- THANK YOU -- MAY NOT BE ABLE TO MAKE THE TRIP, BUT IF NOT, HE'LL TRY TO DO IT ANOTHER TIME. DO YOU SEE THAT?
DANIEL MOSLEY: LET'S SEE. LET'S SEE. THAT WAS -- YES, IN THE, IN THE SORT OF SECOND -- WELL, THE TOP EMAIL, OR NEXT TO THE TOP EMAIL.
MR. WADE: OKAY. AND SO THE IDEA WAS THEN GOING TO BE THAT YOU WERE GOING TO ATTEND THE MEETING WITH OTHER MEMBERS OF THE FOUNDATION, AND YOU COULD LOOP BACK WITH MR. DRACOPOULOS?
DANIEL MOSLEY: YES.
MR. WADE: OKAY. LET ME BRING YOU TO EXHIBIT 4221, WHICH IS IN VOLUME ONE. OH, I'M SORRY. WRONG DOCUMENT. 14 -- GO BACK TO THE OTHER BINDER. 14 --
DANIEL MOSLEY: BACK TO VOLUME ONE.
DANIEL MOSLEY: I'M THERE.
MR. WADE: AND THIS IS A COMMUNICATION IN EARLY OCTOBER OF 2014 WITH RESPECT TO THERANOS INVESTMENT MATTERS; CORRECT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THAT'S CORRECT.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14124 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
MR. WADE: IF WE CAN START WITH THE EMAIL ON THE BOTTOM OF THE FIRST PAGE. YOU NOTE SHE SAYS, "I AM HAPPY THAT EACH OF THE POTENTIAL INVESTORS FROM THE WALTON, COX, DEVOS, AND NIARCHOS FAMILIES ARE PROCEEDING VERY WELL AS I WOULD EXPECT." DO YOU SEE THAT?
DANIEL MOSLEY: THAT'S WHAT I STATE, YES.
MR. WADE: YEP. AND THEN THERE'S SOME REFERENCES THERE, THERE'S AN INDICATION THAT MR. PENNER BROUGHT YOU UP TO SPEED. DO YOU SEE THAT?
DANIEL MOSLEY: YES, I DO SEE IT.
DANIEL MOSLEY: YOU KNOW, I'M SURE I TALKED TO HIM PERIODICALLY.
MR. WADE: OKAY. AND DO YOU SEE IT NOTES, THERE ARE A COUPLE OF OPEN QUESTIONS THAT MR. PENNER HAD FLAGGED FOR YOU AND YOU INTENDED TO RAISE THOSE WITH MS. HOLMES. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. AND THEN THE NEXT PARAGRAPH MENTIONS THAT YOU WERE AWARE THAT MR. TUBERGEN HAD SET THE MEETING IN PALO ALTO ON THE 14TH. DO YOU SEE THAT?
DANIEL MOSLEY: YEAH.
MR. WADE: AND YOU NOTED THAT HE'S BRINGING SEVERAL FAMILY MEMBERS, INCLUDING DOUG DEVOS, WHO IS THE CEO OF AMWAY; CORRECT?
DANIEL MOSLEY: I SEE.
DANIEL MOSLEY: I'M ASSUMING JERRY TOLD ME THAT HE HAD SET UP THIS MEETING FOR THE MEMBERS OF THE DEVOS FAMILY AND ELIZABETH.
MR. WADE: OKAY. AND THEN YOU NOTE THAT YOU'RE GOING TO SEE MS. HOLMES ON THE 17TH WITH AT LEAST TWO MEMBERS OF THE FOUNDATION?
DANIEL MOSLEY: TO INTRODUCE THE NIARCHOS FOUNDATION, YES.
DANIEL MOSLEY: I SAID, "IT SOUNDS LIKE YOU HAD A VERY GOOD MEETING WITH ALEX TAYLOR."
MR. WADE: RIGHT. SO BY THE POINT OF THIS MEETING, THERE HAD ALREADY BEEN A MEETING BETWEEN MS. HOLMES AND ALEX TAYLOR?
DANIEL MOSLEY: I ASSUME THAT'S CORRECT. I WASN'T KEPT UP TO SPEED ON ALL THE MEETINGS, BUT THIS IS CERTAINLY AN INDICATION THAT I KNEW ABOUT THAT MEETING.
MR. WADE: AND AGAIN, WITHOUT REVEALING THE SUBSTANCE, THAT YOU HAD BEEN IN COMMUNICATION WITH MR. TAYLOR ABOUT THE MEETING; CORRECT?
DANIEL MOSLEY: COULD YOU ASK THAT AGAIN? I DIDN'T QUITE UNDERSTAND IT.
DANIEL MOSLEY: RIGHT.
MR. WADE: BUT IN THIS TIME PERIOD YOU WERE IN COMMUNICATION WITH MR. TAYLOR ABOUT THE THERANOS MATTERS; CORRECT?
DANIEL MOSLEY: WELL, IT OBVIOUSLY -- IT WOULD APPEAR HE CERTAINLY TOLD ME THAT HE HAD A GOOD MEETING WITH ELIZABETH.
MR. WADE: AND DO YOU SEE IN THE EMAIL CHAIN ABOVE, MS. HOLMES JUST GIVES YOU A REPORT BACK ON THE STATUS OF THESE CONTACTS AS WELL AND THE FACT THAT SHE HAD BEEN IN COMMUNICATION WITH SOME OF YOUR CLIENTS. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND DO YOU RECALL THAT DURING THE -- THIS TIME PERIOD THAT -- LET ME HAVE YOU LOOK AT 14125. YOUR HONOR, I WOULD MOVE THE ADMISSION OF 14125 FOR THE NONHEARSAY PURPOSE OF MY CLIENT'S STATE OF MIND, AND IN PART SO THAT I CAN ALLOW THE WITNESS TO KNOW WHAT HE CAN TALK ABOUT WITHOUT GOING INTO PRIVILEGE MATTERS.
(PAUSE IN PROCEEDINGS.)
MR. SCHENK: FOUNDATION AND HEARSAY, YOUR HONOR.
JUDGE DAVILA: I'M NOT SURE I UNDERSTAND THE CONNECTION THAT YOU JUST SPOKE TO, MR. WADE.
MR. WADE: WELL, THE INVOLVEMENT OF MR. MOSLEY IN THESE COMMUNICATIONS WITH HIS CLIENT IS KNOWN TO MS. HOLMES, AND SO I OFFER THE DOCUMENT FOR THAT PURPOSE. AS A PRACTICAL MATTER, I WOULD ASSUME THAT MR. MOSLEY WOULD WANT TO BE CAUTIOUS ABOUT THE COMMUNICATIONS HE WAS HAVING WITH MR. TAYLOR. BUT TO THE EXTENT THAT THOSE COMMUNICATIONS ARE COMMUNICATED BY MR. TAYLOR TO MS. HOLMES, I THINK HE COULD BE COMFORTABLE DISCUSSING THEM WITHOUT CONCERN ABOUT PRIVILEGE.
JUDGE DAVILA: CAN YOU JUST ASK HIM QUESTIONS ABOUT IF THIS GOES TO AN ISSUE ABOUT THE INVESTMENT OR AN ISSUE ABOUT THE --
JUDGE DAVILA: OKAY. JUST ASK HIM QUESTIONS.
MR. WADE: DO YOU RECALL THAT YOU WERE HAVING COMMUNICATIONS WITH MR. TAYLOR FROM COX AND JOHN DYER ABOUT THE THERANOS INVESTMENT IN EARLY OCTOBER 2014?
DANIEL MOSLEY: YOU KNOW, I SUSPECT I HAD HAD ONE OR MORE CONVERSATIONS WITH THEM. I DON'T REALLY HAVE ANY PARTICULAR MEMORY OF IT OR HONESTLY WHAT IT WAS REALLY ABOUT, BUT I SUSPECT I HAD SOME CONVERSATIONS DURING THAT PERIOD.
MR. WADE: AND DO YOU RECALL THAT MEMBERS OF THE COX FAMILY WANTED YOU TO COME OUT AND PARTICIPATE IN THE MEETING WITH THEM AT THERANOS?
DANIEL MOSLEY: AT SOME POINT THEY DID SUGGEST AND ASK ME WHETHER I WAS AVAILABLE TO ATTEND.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I DON'T REMEMBER.
MR. WADE: OKAY. AND I GUESS WHAT I'M ASKING IS, WERE THE PARTIES SITTING ACROSS FROM ONE ANOTHER HAVING A DISCUSSION?
DANIEL MOSLEY: I CERTAINLY REMEMBER SITTING IN A CONFERENCE TABLE.
MR. WADE: OKAY. AND DO YOU REMEMBER WHETHER YOU WERE SITTING NEXT TO MR. TAYLOR OR NEXT TO MS. HOLMES?
DANIEL MOSLEY: I DON'T.
MR. WADE: OKAY. DO YOU RECALL ONE OF THE ISSUES THAT WAS -- SOME OF THE ISSUES THAT WERE UNDER DISCUSSION WAS EXECUTION OF THE 2015 GROWTH PLAN?
DANIEL MOSLEY: I DON'T SPECIFICALLY REMEMBER.
MR. WADE: DO YOU RECALL AN AREA THAT YOU WERE INTERESTED IN DISCUSSING WITH MR. TAYLOR WAS THE WALGREENS AND SAFEWAY CONTRACTS AND THEIR TERMS, DURATION, AND REVENUE ISSUES?
DANIEL MOSLEY: YOU KNOW, I DON'T. I DON'T SPECIFICALLY REMEMBER.
MR. WADE: DOES LOOKING AT 14125 REFRESH YOUR RECOLLECTION THAT THE WALGREENS AND SAFEWAY EXECUTION IN 2015 WAS ONE OF THE ISSUES THAT YOU WERE DISCUSSING WITH MR. TAYLOR IN OCTOBER OF 2014?
DANIEL MOSLEY: I MEAN, THIS IS OBVIOUSLY AN EMAIL WHICH I WASN'T A PARTY TO. IT, IT DOESN'T SPECIFICALLY -- I DON'T HAVE ANY PARTICULAR MEMORY OF THAT.
MR. WADE: OKAY. AND DOES LOOKING AT THIS EMAIL REFRESH YOUR RECOLLECTION THAT THE WALGREENS AND SAFEWAY CONTRACTS IN THEIR TERMS, DURATION, AND REVENUE SPLIT WERE ISSUES THAT YOU WERE INTERESTED IN?
DANIEL MOSLEY: UM, GIVEN THAT WALGREENS IN PARTICULAR WAS EXPECTED TO BE A MAJOR SOURCE OF REVENUE, I WAS CERTAINLY INTERESTED IN IT.
MR. WADE: OKAY. AND DO YOU RECALL THAT THAT WAS AN ISSUE THAT YOU WERE COMMUNICATING WITH MR. TAYLOR?
DANIEL MOSLEY: I DON'T.
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE THAT TO BE AN EMAIL BETWEEN YOU AND MS. HOLMES ABOUT THERANOS INVESTMENT MATTERS IN OCTOBER OF 2014?
DANIEL MOSLEY: THERE -- I THINK THERE ARE TWO EMAILS HERE, BUT THEY DO SEEM -- CERTAINLY ABOUT THAT SUBJECT, YES.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14151 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
DANIEL MOSLEY: OKAY.
MR. WADE: THE WHOLE THING THERE. THANK YOU. AND DO YOU SEE HERE THAT YOU NOTE THAT YOU WERE PLANNING TO MAKE A TRIP WITH ALEX TAYLOR ON FRIDAY, THE 10TH? DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND THAT YOU WERE THEN GOING TO MAKE ANOTHER TRIP ON OCTOBER THE 17TH WITH THE NIARCHOS FOUNDATION?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: UM, I CAN'T -- YOU KNOW -- I ASSUME -- YOU'RE TELLING ME IT WAS ON THE 10TH, FRIDAY WAS THE 10TH, THEN IT WAS FRIDAY THE 10TH. BUT, YOU KNOW, I DON'T HAVE A CALENDAR IN FRONT OF ME.
DANIEL MOSLEY: OKAY. THAT'S A FAIR INFERENCE.
DANIEL MOSLEY: I THINK SO.
DANIEL MOSLEY: YES, I DID.
DANIEL MOSLEY: I DON'T REMEMBER.
DANIEL MOSLEY: IT WAS CERTAINLY MORE THAN AN HOUR, MAYBE A COUPLE OF HOURS. I DON'T KNOW. SOMETHING IN THAT RANGE.
MR. WADE: OKAY. AND DURING THAT THERE WAS DISCUSSION ABOUT A VARIETY OF DIFFERENT THERANOS MATTERS?
DANIEL MOSLEY: YES.
MR. WADE: AND DO YOU HAVE ANY SPECIFIC RECOLLECTION OF WHAT WAS DISCUSSED AS YOU SIT HERE TODAY?
DANIEL MOSLEY: YOU KNOW, I DON'T.
DANIEL MOSLEY: YOU KNOW, I HAVE A, I HAVE A NORMAL HABIT OF TAKING NOTES, SO I SUSPECT THAT I DID. BUT I ALSO HAVE A NORMAL HABIT OF THROWING AWAY MY NOTES.
MR. WADE: OKAY. FAIR ENOUGH. IF I COULD GO TO THE ELMO FOR JUST A SECOND, MS. KRATZMANN. I JUST WANT TO ADD IN -- I BELIEVE WE SAID THE FIRST MEETING WAS ON THE 10TH, AND THE NEXT MEETING WAS ON THE 17TH; CORRECT?
DANIEL MOSLEY: CORRECT.
MR. WADE: IF I COULD DRAW YOUR ATTENTION TO 14152. AND DO YOU SEE THAT TO BE AN EMAIL BETWEEN YOU AND MS. HOLMES IN ADVANCE OF THE NIARCHOS FAMILY?
DANIEL MOSLEY: ON THE 17TH? YES.
MR. WADE: OKAY. AND YOU HAD SENT, YOU HAD SENT SOME QUESTIONS THAT THEY HAD IN ADVANCE SO SHE COULD PREPARE FOR THE MEETING; IS THAT RIGHT?
DANIEL MOSLEY: I'M NOT SURE I SEE REFERENCES TO IT. BUT IS THERE A REFERENCE TO HAVING SENT SOMETHING TO HER IN ADVANCE?
DANIEL MOSLEY: OH, YES, IT SAYS THERANOS QUESTIONS. YEAH, SO I -- I'M ASSUMING I SENT THIS AND IT WAS PREPARED BY, A LIST OF QUESTIONS PREPARED BY THEIR INVESTMENT STAFF, WHICH INCLUDED THE COO, THE CHIEF INVESTMENT OFFICER, AND ANOTHER MEMBER OF THE INVESTMENT GROUP.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14152 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THEY'RE CERTAINLY NOT QUESTIONS THAT I PUT TOGETHER.
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. LET'S GO BACK TO THE FIRST PAGE FOR JUST A SECOND. DO YOU SEE THERE'S A REFERENCE THERE ACTUALLY AT THE START OF THIS EMAIL TO A GREAT REPORT FROM JERRY TUBERGEN AFTER YOUR MEETING, WHICH OBVIOUSLY WENT VERY WELL. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I DON'T KNOW THE EXACT DATE OF THEIR MEETING. YOU KNOW, I WASN'T PRESENT AND DIDN'T HAVE ANY PART IN SETTING IT UP.
MR. WADE: OKAY. AND WITHOUT REVEALING THE SUBSTANCE, DO YOU RECALL MR. TUBERGEN GIVING YOU A CALL TO GIVE YOU A REPORT?
DANIEL MOSLEY: I DON'T RECALL SPECIFICALLY, BUT THIS WAS CERTAINLY AN INDICATION THAT SAID I GOT A GREAT REPORT FROM JERRY, SO I ASSUME THAT HE CALLED ME AND SAID WE HAD A NICE TIME.
DANIEL MOSLEY: I DON'T SPECIFICALLY REMEMBER THE CALL.
DANIEL MOSLEY: OKAY.
MR. WADE: DO YOU SEE THAT TO BE ANOTHER EMAIL BETWEEN YOU AND MS. HOLMES RELATING TO THE THERANOS INVESTMENT?
DANIEL MOSLEY: IT LOOKS LIKE IT'S THREE EMAILS.
DANIEL MOSLEY: CORRECT.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14153 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
MR. WADE: AND IF WE GO TO THE TOP EMAIL THERE. DO YOU SEE THAT YOU COMMUNICATE ABOUT SEEING MS. HOLMES ON IT LOOKS LIKE OCTOBER 17TH, 2014?
DANIEL MOSLEY: I THINK THAT'S CORRECT.
DANIEL MOSLEY: YES.
MR. WADE: AND THEN YOU NOTE IN THE SECOND LINE, "FORTUNATELY, ANDREAS TRUSTS MY JUDGMENT (AS WELL AS DR. KISSINGER'S) AND I AM KEEPING HIM FULLY UP TO SPEED." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: OKAY. SO YOU WERE GIVING BRIEFINGS TO MR. DRACOPOULOS ABOUT WHAT WAS HAPPENING AT THESE MEETINGS?
DANIEL MOSLEY: I HADN'T EVEN HAD THE MEETING YET, SO -- THIS WAS BEFORE THE MEETING.
MR. WADE: OKAY. AND YOU SAY THAT "I AM KEEPING HIM FULLY UP TO SPEED." IS THAT WITH RESPECT TO THERANOS MATTERS GENERALLY?
DANIEL MOSLEY: PROBABLY AT THIS POINT IT WAS ABOUT THE TIME OF THE MEETING.
DANIEL MOSLEY: IS THAT IN THE OTHER VOLUME?
DANIEL MOSLEY: WHAT WAS THAT NUMBER AGAIN?
DANIEL MOSLEY: OKAY.
MR. WADE: AND DO YOU RECOGNIZE THIS TO BE AN EMAIL BETWEEN YOU AND MS. HOLMES ON OCTOBER 21ST, 2014 RELATING TO THERANOS?
DANIEL MOSLEY: I DO.
MR. SCHENK: I BELIEVE IT WAS ADMITTED, YOUR HONOR.
JUDGE DAVILA: WOULD YOU LIKE IT PUBLISHED?
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 2110 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
MR. WADE: AND THIS IS JUST THE DATE OF THE EMAIL? DO YOU SEE THAT? AND DO YOU SEE THE REFERENCE, THE SUBJECT IS MEETING LAST FRIDAY?
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I BELIEVE IT DOES.
DANIEL MOSLEY: YES, AND THE INVESTMENT PEOPLE FROM THE NIARCHOS FOUNDATION.
MR. WADE: AND DO YOU SEE IT STARTS IN THE SECOND PARAGRAPH THERE, IT SAYS, "OVER THE WEEKEND, I HAD A CHANCE TO FILL ANDREAS IN ON THE MEETING." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
DANIEL MOSLEY: YES, IT IS.
MR. WADE: OKAY. AND IT NOTES THAT BEFORE YOU HAD A CHANCE TO FILL HIM IN, HE STATED THAT HE THOUGHT SOME OF THE FOUNDATION MEMBERS HAD SOME ISSUES OR SOMETHING. DO YOU SEE THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND DO YOU RECALL THAT SOME OF THE FOUNDATION MEMBERS SEEMED TO BE FOCUSSED ON WHAT WERE TECHNICAL, CONSIDERED TO BE SORT OF TECHNICAL ISSUES?
DANIEL MOSLEY: I THINK THEY WANTED, YOU KNOW, WANTED TO BE ABLE TO GET INTO A LOT MORE INFORMATION THAN THEY HAD AVAILABLE AT THE TIME.
MR. WADE: OKAY. AND DO YOU SEE A COUPLE LINES DOWN THERE, HE SAYS, "HE ASKED ME TO APOLOGIZE FOR NOT BEING THERE TO CUT THROUGH THE NONSENSE"?
DANIEL MOSLEY: YES.
MR. WADE: AND HE THEN -- LATER IN THE EMAIL, OR IN THE -- YEAH, THAT PARAGRAPH RIGHT THERE. IF WE CAN BLOW THAT UP. YOU SAY IN THE SECOND SENTENCE, "HOWEVER, ANDREAS WANTED ME TO ASK IF YOU WOULD BE AGREEABLE TO HIS MAKING A PERSONAL INVESTMENT OF $25 MILLION." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND SO MR. DRACOPOULOS WAS MAKING THIS INVESTMENT DECISION WITHOUT HAVING VISITED THERANOS; CORRECT?
DANIEL MOSLEY: HE HAD OBVIOUSLY DEBRIEFED WITH HIS INVESTMENT TEAM AND OBVIOUSLY, AS STATED IN THE FIRST PARAGRAPH, STATED THAT HE DIDN'T THINK THAT THEY WERE GOING TO GET TO THE POINT WHERE THE FOUNDATION WOULD BE COMFORTABLE INVESTING. BUT THEN HE OBVIOUSLY ASKED ME IF I WOULD ASK ELIZABETH, WOULD SHE BE COMFORTABLE TAKING A $25 MILLION INVESTMENT FROM HIM PERSONALLY.
MR. WADE: RIGHT. AND YOU RECALL THAT YOU, IN THE PRIOR EMAIL, YOU HAD COMMITTED TO KEEPING -- YOU TOLD MS. HOLMES THAT YOU WERE KEEPING HIM FULLY BRIEFED ON WHAT WAS GOING ON?
DANIEL MOSLEY: WE DISCUSSED THAT THAT WAS BEFORE THE MEETING --
DANIEL MOSLEY: -- AND SO I THINK THE ONLY THING I WAS KEEPING HIM BRIEFED ON WAS THAT WE WERE GOING TO HAVE A MEETING.
DANIEL MOSLEY: HE'D BEEN A LONG-TERM CLIENT OF MINE.
DANIEL MOSLEY: I DID NOT.
DANIEL MOSLEY: YES.
MR. WADE: AND AT THIS POINT, OCTOBER 21ST, 2014, YOU LEARNED THAT THERE WAS AN AGREEMENT FOR THEM TO INVEST $100 MILLION; CORRECT?
DANIEL MOSLEY: WELL, I SAY THAT JERRY SENT ME AN EMAIL OBVIOUSLY THAT THEY HAD, BETWEEN ELIZABETH AND JERRY, AGREED TO A $100 MILLION INVESTMENT, YES.
DANIEL MOSLEY: YES, THAT THEY WERE VERY EXCITED.
MR. WADE: AND THEN YOU ALSO GAVE AN UPDATE ON THE WALTON INVESTMENT IN THAT SAME PARAGRAPH. DO YOU SEE THAT?
DANIEL MOSLEY: I THINK ALL I SAY IS, YOU KNOW, AS I SAID, THERE WERE -- I THINK GREG AND HIS TEAM WERE LOOKING AT THE COMPANY, AND ALL I SAY IS THAT I SPOKE WITH GREG AND UNDERSTAND THE WAL-MART GROUP IS NOT COMING UNTIL THE 29TH. I DON'T THINK I GIVE ANY OTHER INFORMATION OTHER THAN THAT.
MR. WADE: RIGHT. AND THAT THEY MIGHT MAKE AN INVESTMENT AFTER THE FIRST CLOSING AT THE END OF OCTOBER; RIGHT?
DANIEL MOSLEY: IT SAYS WITH THE POSSIBILITY OF THEIR COMING IN AFTER YOUR FIRST CLOSING, YES, I SAY THAT.
MR. WADE: OKAY. AND I THINK MR. SCHENK HAD SHOWN YOU THIS EMAIL ON DIRECT EXAMINATION, BECAUSE IN THIS EMAIL YOU ALSO COMMUNICATED YOUR HOPE TO INVEST $6 MILLION; RIGHT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THAT IS CORRECT.
JUDGE DAVILA: YOU SAID THAT WE WERE GOING TO FINISH WITH THIS WITNESS BY THE END OF TODAY.
JUDGE DAVILA: AND WHEN YOU SAY "WE," THAT MEANT YOU AND THE GOVERNMENT AND THE GOVERNMENT'S REDIRECT AND RECROSS THAT NEEDED TO BE ACCOMPLISHED. ARE WE STILL ON TASK FOR THAT?
JUDGE DAVILA: ALL RIGHT. SO LET'S TAKE OUR RECESS NOW, LADIES AND GENTLEMEN. 30 MINUTES, LADIES AND GENTLEMEN, 30 MINUTES, PLEASE.
(LUNCH RECESS TAKEN AT 1:33 P.M.) AFTERNOON SESSION
(JURY IN AT 2:05 P.M.)
JUDGE DAVILA: PLEASE BE SEATED. OUR JURY IS PRESENT AND ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR WITNESS WILL BE HERE IN JUST A MOMENT.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: ALL RIGHT. WE'RE BACK ON THE RECORD. MR. MOSLEY IS ON THE STAND. YOU'D LIKE TO CONTINUE WITH YOUR EXAMINATION, MR. WADE?
DANIEL MOSLEY: IS THAT IN VOLUME TWO?
COURT CLERK: THAT EXHIBIT NUMBER AGAIN, COUNSEL, PLEASE?
COURT CLERK: THANK YOU.
DANIEL MOSLEY: OKAY.
BY MR. WADE:
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE IN THIS EMAIL IN NOVEMBER OF 2014 YOU WERE TRANSMITTING A CONFIDENTIAL DISCLOSURE AGREEMENT RELATING TO THERANOS FROM MR. HANK SLACK TO MS. HOLMES?
DANIEL MOSLEY: YES, YES IT IS.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14169 WAS RECEIVED IN EVIDENCE.)
BY MR. WADE:
DANIEL MOSLEY: YES.
MR. WADE: AND IF WE CAN FOCUS ON THE FIRST SENTENCE IN THE SECOND PARAGRAPH. HERE YOU CONVEY TO MS. HOLMES THAT MR. SLACK HAD MENTIONED TO YOU THAT HE SAW MS. HOLMES SPEAK AT THE BDT CONFERENCE. DO YOU RECALL THAT?
DANIEL MOSLEY: THAT'S WHAT IT SAYS, YES.
MR. WADE: OKAY. AND YOU'RE GIVING THIS AS BACKGROUND TO HER SO SHE'S AWARE OF IT IN ADVANCE OF ANY COMMUNICATIONS SHE MAY HAVE WITH MR. SLACK?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I GUESS.
DANIEL MOSLEY: HE IS A, YOU KNOW -- NEVER BEEN A CLIENT OF MINE, AND I DON'T KNOW HANK VERY WELL, BUT HE WAS A MEMBER OF THE OPPENHEIMER FAMILY. I THINK HE'S DIVORCED FROM HIS SPOUSE, WHO WAS THE MEMBER OF THE FAMILY. SO I DON'T KNOW WHETHER THAT MAKES HIM A MEMBER OF THE FAMILY OR NOT.
DANIEL MOSLEY: YES, HE WAS.
MR. WADE: OKAY. AND IF WE CAN GO TO 14168. DO YOU HAVE THAT STRING OF EMAILS IN FRONT OF YOU, SIR?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE THAT WITHIN THIS EMAIL YOU'RE PROVIDING MS. HOLMES WITH AN INTRODUCTION TO MR. SLACK AND VICE VERSA?
DANIEL MOSLEY: YES.
MR. SCHENK: YOUR HONOR, OBJECTION. RELEVANCE BASED ON THE DATE.
JUDGE DAVILA: BROADER COUNT ONE?
MR. WADE: WITHIN THE DURATION OF COUNT ONE. I'D BE HAPPY TO APPROACH AND EXPLAIN IT TO THE COURT. I DON'T HAVE MANY QUESTIONS ON THIS.
JUDGE DAVILA: WHY DON'T YOU MOVE ON TO SOMETHING ELSE, AND THEN WE'LL SAVE THIS UNTIL THE END OF YOUR EXAMINATION, IF YOU CAN. CAN YOU DO THAT?
MR. WADE: SURE. WELL, I HAVE TWO MORE DOCUMENTS THAT ARE SIMILAR TO THIS THAT PROBABLY RAISE THE SAME ISSUE.
JUDGE DAVILA: THE SAME TIME PERIOD?
JUDGE DAVILA: LET ME TAKE A LOOK AT THOSE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: MR. SCHENK, DO YOU WANT TO BE HEARD ON THE OTHERS?
MR. SCHENK: SAME OBJECTION, I THINK.
JUDGE DAVILA: IS IT POSSIBLE FOR YOU TO CONTINUE YOUR EXAMINATION ON OTHER TOPICS AND THEN WE CAN TAKE A BREAK AND TALK ABOUT THESE?
JUDGE DAVILA: I JUST DON'T WANT TO DISRUPT THINGS.
MR. WADE: MR. MOSLEY, DO YOU RECALL GIVING TESTIMONY ON DIRECT EXAMINATION WITH RESPECT TO THAT SIDE LETTER THAT YOU NEGOTIATED RELATING TO THE REDEMPTION ISSUE?
DANIEL MOSLEY: YES, I DO.
DANIEL MOSLEY: IS THAT IN VOLUME ONE?
MR. WADE: IT SHOULD BE, YES, OR IT'S IN THE GOVERNMENT'S BINDER. WHICHEVER IS EASIER FOR YOU, SIR.
DANIEL MOSLEY: OH, I'VE GOT THE GOVERNMENT'S BINDER RIGHT HERE, SO IF YOU COULD GIVE ME THE CITE, THE --
DANIEL MOSLEY: OKAY. I HAVE IT.
MR. WADE: AND IT'S IN EVIDENCE. I HAVE IT ON THE SCREEN. IT'S JUST A PARAGRAPH DOCUMENT IF THAT'S EASIER.
DANIEL MOSLEY: OKAY, I HAVE IT.
DANIEL MOSLEY: YES.
MR. WADE: AND THIS IS ACTUALLY LANGUAGE THAT YOU PROPOSED TO MS. HOLMES OR TO THE COMPANY. DO YOU RECALL THAT?
DANIEL MOSLEY: I DO NOT RECALL HAVING PROPOSED THIS LANGUAGE. IT'S POSSIBLE, BUT I DON'T RECALL THAT.
MR. WADE: OKAY. AND YOU SEE THE REFERENCE IN THAT FIRST SENTENCE WHERE IT REFERS TO A CONFIRMATION WHICH YOUR CLIENTS ARE SUBSCRIBING. DO YOU SEE THE LANGUAGE RELATING TO YOUR CLIENTS?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND I THINK YOU TALKED BEFORE ABOUT THIS WAS SOMETHING THAT HAD COME UP IN CONNECTION WITH SOME OF YOUR CLIENTS, AS WELL AS YOU PERSONALLY; CORRECT?
DANIEL MOSLEY: I'M NOT SURE IT EVER CAME UP. YOU KNOW, OBVIOUSLY MY CLIENTS HAD A LOT OF DEALINGS WITH THE COMPANY AND ELIZABETH THAT I WASN'T A PARTY TO. I DON'T KNOW WHETHER IT EVER CAME UP FROM A CLIENT. IT CERTAINLY CAME UP IN MY OWN PERSONAL LOOK AT THE COMPANY.
MR. WADE: OKAY. IN ANY EVENT, YOU RECALL, AS YOU'RE NEGOTIATING THIS, THIS WAS SOMETHING THAT WAS BEING ADDRESSED ON BEHALF OF ALL OF YOUR CLIENTS; RIGHT?
DANIEL MOSLEY: I, I ASKED FOR IT FOR MYSELF PERSONALLY, AND I'M NOT SURE WHETHER ANY -- I DON'T THINK ANY OF MY CLIENTS INVESTED, AND I DIDN'T KNOW WHETHER THEY WOULD. BUT AS A LAWYER WITH A DUTY TO CLIENTS, I WANTED TO BE SURE THAT IF I OBTAINED THE BENEFIT OF A PROVISION SUCH AS THIS ON MY PERSONAL BEHALF, THAT IT WOULD ALSO APPLY TO ANY OF MY CLIENTS THAT MIGHT HAPPEN TO ALSO INVEST.
MR. WADE: OKAY. BECAUSE YOU UNDERSTOOD THAT YOU HAD CERTAIN ETHICAL OBLIGATIONS WITH RESPECT TO YOUR CLIENTS; IS THAT RIGHT?
DANIEL MOSLEY: SITTING HERE, I DON'T KNOW WHETHER IT WOULD BE COVERED BY ETHICAL OBLIGATIONS. BUT IT WOULD CERTAINLY BE COVERED BY THE WAY THAT I FELT ABOUT MY CLIENTS.
MR. WADE: OKAY. AND DO YOU RECALL IN YOUR DIRECT TESTIMONY YOU WERE ALSO ASKED WHETHER YOU ENCOURAGED ANY OF YOUR CLIENTS TO INVEST AND YOU SAID THAT YOU HAD NOT?
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU RECALL IN CONNECTION WITH THIS REDEMPTION RIGHTS ISSUE THAT YOU WERE DEALING WITH THE BOIES, DAVID BOIES'S LAW FIRM?
DANIEL MOSLEY: I DO REMEMBER HAVING CONVERSATIONS AND DEALING WITH DAVID ON THIS ISSUE.
DANIEL MOSLEY: I THINK I DO REMEMBER HAVING SOME INTERACTION WITH CHRIS BOIES AS WELL.
MR. WADE: AND THEY WERE INVOLVED IN WORKING WITH YOU TO FIND THE LANGUAGE THAT WOULD ADDRESS YOUR CONCERN; CORRECT?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: WELL, THERE ARE A NUMBER OF -- WHICH PARTICULAR EMAIL ARE YOU REFERRING TO?
DANIEL MOSLEY: YEAH, IT CERTAINLY APPEARS THAT THESE, ALL OF THESE EMAILS RELATE TO THAT QUESTION.
MR. SCHENK: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 14135 WAS RECEIVED IN EVIDENCE.)
MR. WADE: DO YOU SEE THAT? AND THIS IS AN EMAIL WITH RESPECT TO WHETHER OR NOT THAT ISSUE IS GOING TO BE GIVEN UP BY THE COMPANY; CORRECT?
DANIEL MOSLEY: YES, IT IS, CORRECT.
MR. WADE: AND YOU WRITE, "I AM MORE THAN OKAY WITH THIS AND HOPE ELIZABETH DOES NOT THINK IT IS NECESSARY." DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE IT.
MR. WADE: AND YOU WRITE, "IF I DID NOT HAVE DEEP TRUST AND FAITH IN ELIZABETH, I WOULD NOT BE INVOLVED WITH THERANOS AND RECOMMENDING AN INVESTMENT BY MY CLIENTS."
DANIEL MOSLEY: I SEE THAT.
COURT REPORTER: THANK YOU.
JUDGE DAVILA: IT SAYS "CLIENTS." IT DIDN'T SAY "BY MY CLIENTS."
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: I PROBABLY MEANT THAT.
MR. WADE: OKAY. THE -- YOU HAD SOME OTHER CONVERSATIONS WITH MR. BOIES RELATING TO THERANOS; CORRECT?
DANIEL MOSLEY: YES, I BELIEVE I DID.
DANIEL MOSLEY: YES, HE IS.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: THAT'S CORRECT.
DANIEL MOSLEY: I DID.
MR. WADE: AND IN CONNECTION WITH THIS, WITH YOUR DEALINGS WITH THERANOS, YOU HAD A COUPLE OCCASIONS TO INTERACT WITH MR. BOIES ON THERANOS MATTERS?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: I BELIEVE -- YES.
MR. WADE: AND IN ADVANCE OF YOUR INVESTMENT, YOU -- AND IN THE SUMMER OF 2014, YOU CONTACTED MR. BOIES; CORRECT?
DANIEL MOSLEY: I CERTAINLY CONTACTED HIM. I DON'T REMEMBER THE EXACT TIMING.
MR. WADE: OKAY. AND DO YOU RECALL THAT YOU CONTACTED HIM BECAUSE YOU WANTED TO GET A LITTLE BIT OF HIS READ ON THE COMPANY?
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: WELL, I BECAME A PARTNER AT CRAVATH IN 1987, AND I DON'T REMEMBER -- AND DAVID WAS ALREADY A PARTNER AT THAT TIME, SO I KNEW HIM FROM 1987 ON.
DANIEL MOSLEY: AND I PROBABLY KNEW HIM BEFORE I WAS PARTNER.
DANIEL MOSLEY: I HAD KNOWN HIM FOR A LONG TIME.
MR. WADE: OKAY. AND YOU RECALL THAT -- WELL, YOU MAY NOT KNOW AT THE TIME, BUT YOU CALLED HIM TO GET HIS TAKE ON THE COMPANY IN ADVANCE OF MAKING AN INVESTMENT PERSONALLY?
DANIEL MOSLEY: YES, I DID.
MR. WADE: AND WHEN YOU DID THAT, MR. BOIES TOLD YOU THAT HE THOUGHT THAT THE TECHNOLOGY THE COMPANY HAD DEVELOPED WAS GOOD; CORRECT?
DANIEL MOSLEY: YES.
MR. WADE: AND -- BUT HE THOUGHT THAT THE LARGEST RISK THAT THE COMPANY FACED WAS WITH RESPECT TO THE ROLLOUT OF THE COMPANY; CORRECT?
DANIEL MOSLEY: HE DID TELL ME THAT, YES.
DANIEL MOSLEY: I DON'T REMEMBER THE TIMING OF IT --
DANIEL MOSLEY: -- OF THE TELEPHONE CONVERSATION. IT WAS A TELEPHONE CONVERSATION THAT I DON'T REMEMBER EXACTLY WHAT DAY.
DANIEL MOSLEY: BUT IT WAS BEFORE I INVESTED.
MR. WADE: OKAY. AND PART OF WHAT MR. BOIES WAS GOING TO WAS -- TO TELL YOU, AS YOU SCALE UP A COMPANY THAT HAS NEW TECHNOLOGY, THERE'S SOME RISK THAT IS ASSOCIATED WITH HOW THE TECHNOLOGY WILL PERFORM; CORRECT?
DANIEL MOSLEY: TO BE MORE PRECISE, HE SAID THAT HE THOUGHT THE TECHNOLOGY WAS ABSOLUTELY SOUND AND WAS PERFORMING WELL, BUT THERE WOULD ALWAYS BE A QUESTION OF WHETHER IT WOULD PERFORM AT THE SAME LEVEL WHEN IT WAS COMPLETELY ROLLED OUT IN MULTIPLE -- MANY, MANY LOCATIONS.
MR. WADE: OKAY. AND THE INFORMATION THAT MR. BOIES IMPARTED TO YOU, WAS THAT INFORMATION THAT YOU SHARED WITH ALL OF YOUR CLIENTS?
DANIEL MOSLEY: YOU KNOW, I DON'T REMEMBER SPECIFICALLY, BUT, YOU KNOW, IT CERTAINLY WOULD BE MY PRACTICE, IF I HEARD ANYTHING FROM ANYBODY THAT I THOUGHT WOULD BE RELEVANT TO SOMEBODY WHO WOULD -- A CLIENT OF MINE WHO IS CONSIDERING AN INVESTMENT, I CERTAINLY WOULD HAVE RELAYED THAT INFORMATION. SO I SUSPECT I DID.
MR. WADE: OKAY. AND SO IT WOULDN'T NECESSARILY BE SPECIFIC TO MR. BOIES; CORRECT? IF YOU LEARNED SOMETHING DURING THE COURSE OF YOUR INTERACTIONS WITH THERANOS THAT YOU THOUGHT WAS RELEVANT, YOU WOULD HAVE RELAYED THAT TO YOUR CLIENTS?
DANIEL MOSLEY: THAT IS CORRECT.
MR. WADE: OKAY. I THINK YOU TESTIFIED ON DIRECT THAT YOU WEREN'T CERTAIN WHETHER YOU KNEW OR WHEN YOU LEARNED ABOUT THE COMPANY DOING VENOUS DRAWS. DO YOU RECALL THAT?
DANIEL MOSLEY: I DON'T RECALL THAT.
MR. WADE: OKAY. DO YOU RECALL WHETHER, IN CONNECTION WITH YOUR DUE DILIGENCE AT THE COMPANY, WHETHER YOU LOOKED AT ALL AT THE COMPANY'S WEBSITE?
DANIEL MOSLEY: YOU KNOW, I'M SURE I -- IT'S LIKELY THAT I DID, BUT I DON'T SPECIFICALLY REMEMBER IT. BUT I CAN'T IMAGINE THAT I DIDN'T LOOK AT THEIR WEBSITE.
DANIEL MOSLEY: I DON'T REMEMBER.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: I DO. IT'S TWO PAGES.
MR. WADE: RIGHT. AND, AND DO YOU RECOGNIZE THIS TO BE A SNAPSHOT OF A WALGREENS WEBSITE RELATING TO THERANOS SERVICES?
DANIEL MOSLEY: THAT'S WHAT IT APPEARS TO BE, YES.
MR. SCHENK: FOUNDATION.
JUDGE DAVILA: WOULD YOU LAY A LITTLE FOUNDATION FOR THIS?
MR. WADE: DO YOU RECALL -- I THINK WE TALKED ABOUT SOME OF YOUR GOOGLE SEARCHES BEFORE. DO YOU RECALL THAT?
DANIEL MOSLEY: YES.
MR. WADE: AND I THINK YOU SAID THAT YOU LOOKED -- YOU PROBABLY LOOKED AROUND ON THE INTERNET, MAYBE AT THE THERANOS WEBSITE. DO YOU RECALL?
DANIEL MOSLEY: I CERTAINLY WOULD HAVE LOOKED FOR ANYTHING THAT I COULD FIND AND I, YOU KNOW, MAY HAVE WELL LOOKED AT THIS WEBSITE. BUT I CAN'T TELL YOU IF I DID OR DIDN'T.
MR. WADE: YOUR HONOR, I WOULD ASK THAT THE DOCUMENT BE CONDITIONALLY ADMITTED. WE HAVE A DECLARATION WITH RESPECT TO ITS AUTHENTICITY, AND I HAVE NO DOUBT THAT A NUMBER OF WITNESSES COULD AUTHENTICATE THIS DOCUMENT. BUT I WOULD LIKE TO ASK THIS WITNESS ABOUT IT.
JUDGE DAVILA: ALL RIGHT. WE'LL ADMIT IT AND YOU CAN ASK THIS WITNESS.
(DEFENDANT'S EXHIBIT 14207 WAS RECEIVED IN EVIDENCE.)
JUDGE DAVILA: YES.
BY MR. WADE:
DANIEL MOSLEY: YES.
MR. WADE: AND AGAIN, YOU UNDERSTOOD THAT WALGREENS WAS OFFERING THERANOS SERVICES THROUGH ITS -- SOME OF ITS PHYSICAL LOCATIONS; CORRECT?
DANIEL MOSLEY: I DID.
MR. WADE: OKAY. AND THIS PROVIDES SOMEWHAT OF AN OVERVIEW -- THESE WEB PAGES KIND OF PROVIDE AN OVERVIEW OF SOME OF THOSE SERVICES. DO YOU SEE THAT?
DANIEL MOSLEY: UM, THAT'S WHAT IT SEEMS TO BE DOING, YES.
MR. WADE: OKAY. AND IF WE -- IF I CAN GO UP TO THE HEADER, DO YOU SEE THE DATE IN THE UPPER RIGHT-HAND CORNER, OCTOBER 9TH, 2014? DO YOU SEE THAT?
DANIEL MOSLEY: YES. THERE'S ANOTHER DATE ON THE LEFT-HAND SIDE THAT IS SOMETHING -- MARCH 30TH, 2014. THERE ARE A LOT OF DATES ACROSS THE TOP OF THIS.
DANIEL MOSLEY: I DO.
MR. WADE: AND CAN I DRAW YOUR ATTENTION TO THE SECOND PAGE, THE NEXT WEBSITE, AND IF WE CAN BLOW UP THE TOP WHERE IT SAYS "GOODBYE, BIG BAD NEEDLE"?
DANIEL MOSLEY: IS THIS A DIFFERENT WEBSITE OR IS IT THE SAME WEBSITE?
DANIEL MOSLEY: THE SECOND PAGE.
MR. WADE: OR MAYBE, AS IT APPEARS ON THE INTERNET, YOU WOULD BE ABLE TO SCROLL DOWN ON YOUR COMPUTER TO LOOK AT IT.
DANIEL MOSLEY: RIGHT, RIGHT. I UNDERSTAND.
MR. WADE: AND YOU SAW AN IMAGE OF THIS CUTE LITTLE BOY IN SOME OF THE MATERIALS THAT MR. SCHENK SHOWED YOU; RIGHT?
DANIEL MOSLEY: I DID.
DANIEL MOSLEY: RIGHT.
JUROR: WE HAVE A PICTURE OF THE COURTROOM OVERLAYING WHAT YOU'RE SHOWING.
JUDGE DAVILA: OKAY.
COURT CLERK: OKAY?
JUROR: IT'S REMOVED.
JUROR: YES.
BY MR. WADE:
MR. WADE: AND DO YOU SEE UNDER THIS IT SAYS, "INSTEAD OF A HUGE NEEDLE, THERANOS-TRAINED TECHNICIANS CAN USE A TINY FINGERSTICK OR COLLECT A MICRO-SAMPLE FROM A VENOUS DRAW"? DO YOU SEE THAT?
DANIEL MOSLEY: I DO SEE THAT.
MR. WADE: AND DO YOU SEE THAT THERE'S -- AND IT SAYS THAT "IT'S PRACTICALLY PAINLESS AND A LOT LESS SCARY."
DANIEL MOSLEY: I SEE THAT.
MR. WADE: OKAY. AND IF WE GO DOWN TO FOOTNOTE TWO, WHICH WAS REFERENCED THERE. IF WE CAN PUT THAT UP TOWARDS THE TOP? DO YOU SEE THERE IT SAYS, "BLOOD MAY BE DRAWN BY A FINGERSTICK OR VENOUS DRAW BY A THERANOS-TRAINED TECHNICIAN FOR THERANOS TESTING PERFORMED IN THEIR CLIA-CERTIFIED LABORATORY." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: DO YOU RECALL, WHEN YOU WERE DOING SOME OF YOUR RESEARCH ON THERANOS, WHETHER YOU SAW OR NOTICED THIS LANGUAGE?
DANIEL MOSLEY: NOT THAT I CAN REMEMBER.
DANIEL MOSLEY: OKAY.
DANIEL MOSLEY: IT LOOKS LIKE THAT'S WHAT IT IS.
MR. SCHENK: SAME OBJECTION.
JUDGE DAVILA: MEANING THAT YOU'RE GOING TO CALL A WITNESS AT SOME POINT IN TIME, CERTAINLY NOT TODAY BECAUSE WE DON'T HAVE TIME FOR IT, BUT AT SOME TIME IN THE FUTURE YOU'LL CALL A WITNESS WHO WILL AUTHENTICATE THIS?
JUDGE DAVILA: ALL RIGHT. THANK YOU. IT WILL BE ADMITTED CONDITIONALLY FOR THAT PURPOSE. THANK YOU.
(DEFENDANT'S EXHIBIT 14208 WAS RECEIVED IN EVIDENCE.)
JUDGE DAVILA: YES.
DANIEL MOSLEY: I SEE THAT.
MR. WADE: OKAY. AND LET'S GO DOWN. DO YOU SEE THEY TALK ABOUT -- LET'S BLOW UP THAT FIRST SECTION. IT SAYS, "SAME TESTS. SMALLER SAMPLE."
DANIEL MOSLEY: I SEE THAT.
DANIEL MOSLEY: I DO.
MR. WADE: OKAY. AND IF, IF WE GO TO THE LEFT, DO YOU SEE WHERE IT SAYS "NO BIG NEEDLES" THERE? CAN WE BLOW THAT UP?
DANIEL MOSLEY: I SEE THAT.
MR. WADE: AND IT LOOKS LIKE THERE'S A PICTURE THERE THAT MAYBE DIDN'T CATCH IN THE ARCHIVE. BUT DID YOU EVER COME TO LEARN THAT THERANOS, WHEN IT WOULD DO ITS VENOUS DRAWS, WOULD OFTEN USE A MUCH SMALLER NEEDLE AND DRAW MUCH -- A MUCH SMALLER AMOUNT OF BLOOD IN MANY CASES?
DANIEL MOSLEY: I DON'T REMEMBER, YOU KNOW, WHEN I LEARNED THAT, OR IF I LEARNED IT HONESTLY.
MR. WADE: OKAY. AND IF WE CAN GO DOWN TO THE BOTTOM OF THAT PAGE, "THE ONLY THING WE WANT YOU TO FEEL IS BETTER." DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU SEE THE LANGUAGE THERE, IT SAYS, "INSTEAD OF A BIG, INTIMIDATING NEEDLE, OUR CERTIFIED PHLEBOTOMISTS CAN USE A TINY FINGERSTICK OR A MICRO-SAMPLE FROM A VENOUS DRAW"? DO YOU SEE THAT?
DANIEL MOSLEY: I DO, UH-HUH.
MR. WADE: AND THE MICRO-SAMPLE FROM THE VENOUS DRAW, THAT SUGGESTS THAT THE AMOUNT OF BLOOD WOULD BE A SMALLER AMOUNT?
DANIEL MOSLEY: I'M ASSUMING THAT'S WHAT IT MEANS.
MR. WADE: AND THEN IT GOES ON TO SAY, "OCCASIONALLY, A VENIPUNCTURE MAY BE REQUIRED BASED ON THE LAB ORDER, BUT THIS IS UNCOMMON, AND OUR AIM IS TO ELIMINATE THAT SCENARIO," ALTOGETHER. DO YOU SEE THAT?
DANIEL MOSLEY: I DO.
MR. WADE: AND DO YOU RECALL WHETHER YOU LEARNED THIS INFORMATION BETWEEN AUGUST AND OCTOBER WHEN YOU WERE MAKING YOUR INVESTMENT WITH THERANOS?
DANIEL MOSLEY: I DON'T BELIEVE I KNEW THIS AT THE TIME.
JUDGE DAVILA: YES.
(DISCUSSION AMONGST DEFENSE COUNSEL OFF THE RECORD.)
MR. WADE: YOUR HONOR, APART FROM THOSE DOCUMENTS, I DON'T HAVE ANY FURTHER QUESTIONS OF MR. MOSLEY AT THIS TIME.
JUDGE DAVILA: ALL RIGHT. LET ME MEET WITH COUNSEL. THE RECORD SHOULD REFLECT THAT IT'S 2:32 P.M. WE'RE GOING TO FINISH AT 3:00 TODAY. LET ME SEE COUNSEL AT THE SIDE-BAR. FOLKS, JUST REMAIN HERE, PLEASE, AND DON'T DISCUSS THE CASE OR TALK TO ANYONE. YOU CAN STAND AND STRETCH, OF COURSE. AND WE'LL JUST BE A COUPLE OF MINUTES. LIKEWISE, MR. MOSLEY.
DANIEL MOSLEY: THANK YOU.
(SIDE-BAR CONFERENCE ON THE RECORD.)
JUDGE DAVILA: WE'RE ON THE RECORD. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. MR. SCHENK IS PRESENT AND MR. WADE IS PRESENT. WE'RE TALKING ABOUT 14168, 14139, AND 14138. MR. SCHENK, YOUR OBJECTION?
MR. SCHENK: YES, YOUR HONOR. THE EXHIBITS ARE AFTER MR. MOSLEY'S INVESTMENT. WE DISCUSSED YESTERDAY THE IDEA OF THE KNOWLEDGE INSIDE AN INVESTOR'S HEAD BEING RELEVANT UP UNTIL THE POINT OF INVESTMENT, AND CONSISTENT WITH THAT, I ENDED MY DIRECT EXAM AT THE MOMENT OF MR. MOSLEY'S WIRE. THESE ARE AFTER THE WIRE, AND IT IS FOR THAT REASON THAT I QUESTION THEIR RELEVANCE.
JUDGE DAVILA: I HAVE 14138, 14139, AND 14168.
JUDGE DAVILA: THOSE ARE THE THREE DOCUMENTS?
JUDGE DAVILA: THEY'RE EMAILS THAT ARE POST INVESTMENT OF THIS WITNESS, AND THEY'RE INTRODUCTORY EMAILS TO MS. HOLMES FOR VARIOUS PEOPLE. THEY SAY FLATTERING THINGS ABOUT MS. HOLMES AND THAT TYPE OF THING. BUT I'M INCLINED TO SUSTAIN THE OBJECTION. THEY'RE OUTSIDE THE PERIOD.
MR. WADE: THEY'RE NOT OUTSIDE THE PERIOD OF THE CONSPIRACY, YOUR HONOR. AND IN PARTICULAR, THE WALTON INVESTMENT IS AN INVESTMENT WHERE THE -- 14139 IS A MEMBER OF THE WALTON FAMILY WHO HAD BEEN IN COMMUNICATIONS WITH MR. MOSLEY THROUGHOUT THE TIME PERIOD STARTING AS EARLY AS AUGUST OF 2014. AND SO THEY'RE DIFFERENT MEMBERS OF THE WALTON FAMILY. EARLY IN HIS TESTIMONY, MR. MOSLEY TESTIFIED THAT ALICE WALTON WAS SOMEONE WHO HE INTERACTED WITH ON THE INVESTMENT, AND THERE ARE, ON MR. MOSLEY'S PRIVILEGE LOG, I BELIEVE ABOUT 60 PRIVILEGED COMMUNICATIONS WITH MEMBERS OF THE WALTON FAMILY THROUGHOUT THE TIME PERIOD WHERE HE'S INTERACTING AND OBTAINING INFORMATION. AND THEN THE LAST BIT OF THAT FOR THE WALTON INVESTMENT IS TO LOOP IN MS. WALTON. THE INVESTOR CONSPIRACY GOES WELL PAST 2015, AND I BELIEVE THIS -- IT GOES UNTIL THE END OF 2015, AND I BELIEVE THIS EVIDENCE IS RELEVANT TO OUR DEFENSE IN THAT CONSPIRACY, AND THIS IS THE WITNESS WHO PROVIDES THE INTRODUCTION. HE'S SOMEONE WHO IS INTERACTING EXTENSIVELY WITH A NUMBER OF PEOPLE THROUGHOUT A PERIOD. THERE'S BEEN A LOT OF TESTIMONY ABOUT THAT. AND HE CONTINUES TO PROVIDE, TO ENCOURAGE PEOPLE TO INVEST IN THE COMPANY.
JUDGE DAVILA: WELL, HE'S NEGOTIATING HERE INTRODUCTIONS. HE'S FACILITATING INTRODUCTIONS IN THESE THREE EMAILS.
MR. WADE: HE IS IN THESE THREE EMAILS, WHO ARE PEOPLE WHO INVEST. I DON'T INTEND TO ASK -- TO BE HONEST, YOUR HONOR, I DON'T INTEND TO ASK HIM ANY QUESTIONS ABOUT IT. I JUST INTEND TO ADMIT THE DOCUMENTS THAT SHOW THAT HE IS THE ONE WHO PROVIDED THE INTRODUCTION TO MS. HOLMES.
JUDGE DAVILA: CAN'T YOU ASK HIM ABOUT THAT? DIDN'T YOU INTRODUCE HANK? DIDN'T YOU INTRODUCE NOAM? DIDN'T YOU INTRODUCE ALICE?
MR. WADE: I CERTAINLY CAN. I JUST THINK THE DOCUMENTS ARE RELEVANT. I THINK THE DOCUMENTS TO THE END OF 2015 ARE RELEVANT TO THE INVESTOR CONSPIRACY AND I THINK THEY'RE FAIR GAME. I'M NOT -- I HOPE THE COURT KNOWS, I TRIED TO ADHERE TO MR. SCHENK'S REQUEST. I DIDN'T GO INTO ANY OF THE EMAILS FROM 2015 RELATING TO MR. SLACK IN MORE DETAILED INTERACTIONS BECAUSE THAT WOULD HAVE BEEN MORE INTO THE SUBSTANCE OF WHAT WAS GOING ON WITH MR. SLACK. I THINK THERE'S AN ARGUMENT THAT IT'S RELEVANT, BUT JUST IN THE INTEREST OF EFFICIENCY I STOPPED. AND I'M NOT EVEN GOING INTO THE BLOOD TESTS. SO I'VE TRIED TO CURTAIL IT. I JUST THINK TO THE END OF THIS PERIOD WHEN HE'S IN ACTIVE COMMUNICATION WITH ALL OF THESE CLIENTS, ONE OF WHOM IS MS. WALTON WHO IS PART OF THE FAMILY, THE FIRST FAMILY HE STARTED TO COMMUNICATE WITH.
JUDGE DAVILA: SO I LOOK AT THIS AND I THINK, OKAY, THE REAL VALUE OF THIS IS TO GET IN FRONT OF THE JURY THIS AUTHOR'S WRITING SAYING, I KNOW YOU HAVE ALWAYS LOOKED FOR OPPORTUNITIES TO SUPPORT WOMEN, I CAN'T THINK OF A BETTER EXAMPLE THAN ELIZABETH. IT SEEMS TO ME -- AND ALL OF THESE EMAILS HAVE FLATTERING LANGUAGE FOR YOUR CLIENT, AND IT SEEMS LIKE THAT'S THE REAL PURPOSE. MAYBE YOU DON'T HAVE TO ANSWER THAT QUESTION.
MR. WADE: NO, YOUR HONOR. THAT PURPOSE SHOWS THE RELEVANCE OF THE DOCUMENTS BECAUSE THEY REFLECT, THEY REFLECT THIS WITNESS'S BELIEF AND FOCUS ON INFORMATION AROUND THE TIME PERIOD THAT HE MADE THE INVESTMENT. HE'S NOT FOCUSSING ON, FOR EXAMPLE, WHO PUT THE LOGO ON THE PFIZER REPORT. HE'S FOCUSSED ON THE BROAD VISION OF THE CLIENT AND HER CHARACTERISTICS, YOU KNOW, AS A PROMINENT FEMALE LEADER. I THINK THAT THAT IS RELEVANT TO SHOW WHAT WAS MATERIAL TO HIM IN CONNECTION WITH HIS INVESTMENT DECISION RIGHT IN THE SAME WINDOW.
JUDGE DAVILA: BUT THE WINDOW IS CLOSED HERE. THIS IS WELL AFTER HIS INVESTMENT.
MR. WADE: NO. BUT AGAIN, YOUR HONOR, THIS RELATES TO A POINT THAT I RAISED WITH THE COURT YESTERDAY, AND ALL I'M LOOKING TO GET IN IS THE INTRODUCTION SO WE HAVE THE ABILITY TO SHOW THAT THIS INVESTOR HAD SUCH BELIEF IN THE, IN THE COMPANY THAT HE CONTINUED TO PUT PEOPLE INTO IT. AND I THINK THERE IS SOME OTHER EVIDENCE THAT MAY COME OUT IN THIS WINDOW, THAT THE FACT THAT HE CONTINUED TO BELIEVE THAT I THINK IS RELEVANT AND IS APPROPRIATE FOR US TO ARGUE.
JUDGE DAVILA: ONE OF THE OTHER THINGS THAT HAS COME UP THROUGH THE FIVE AND A HALF HOURS OF YOUR EXAMINATION OF THIS WITNESS IS IT ALMOST SOUNDS LIKE YOU'RE GOING TO BLAME THE VICTIMS, THESE INVESTORS AND THINGS, AND I JUST -- I HAVEN'T HEARD ANY OBJECTIONS ABOUT THAT, BUT -- AND OF COURSE NOW IS NOT THE TIME TO OBJECT TO THAT AS IT WOULD BE IN CLOSING ARGUMENTS. BUT I JUST WANTED TO REMIND EVERYONE ABOUT THAT CAVEAT. WE CAN'T DO THAT IN ARGUMENT, OF COURSE.
MR. WADE: OF COURSE NOT, YOUR HONOR. AND IT IS NOT OUR INTENT IN ANY WAY TO BLAME THE VICTIM. BUT THE INFORMATION THAT THEY HAD AND THAT THEY CONSIDERED DURING THIS TIME PERIOD IS RELEVANT. THE GOVERNMENT PRESENTED SUBSTANTIALLY ALL EVIDENCE THAT RELATES TO SEPTEMBER 2ND, 2014, AND BY AND LARGE IT STOPPED. AND THE REALITY IS THAT THIS WITNESS HAD A LOT OF ONGOING INTERACTIONS THEREAFTER, SOME OF WHICH WE CAN'T EXPLORE BECAUSE OF PRIVILEGE ISSUES. BUT I THINK IT'S FAIR TO PUT INTO THE CASE ALL OF THE INFORMATION THAT WAS AVAILABLE TO THE INVESTOR IN CONNECTION WITH WHAT COULD HAVE BEEN MATERIAL TO THE INVESTOR IN MAKING THE INVESTMENT DECISION.
JUDGE DAVILA: YOU MEAN THESE OTHER INVESTORS, NOT THIS INVESTOR?
JUDGE DAVILA: HE'S MADE HIS INVESTMENT, THOUGH, AT THE TIME OF THESE EMAILS, HASN'T HE?
MR. WADE: HE HAS MADE HIS INVESTMENT AT THE TIME OF THESE EMAILS, BUT SUBSEQUENT ACTS, AS THE GOVERNMENT USUALLY STATES AGAINST CLIENTS OF MINE, SUBSEQUENT ACTS CAN BE RELEVANT AS TO THE PRIOR INTENT, AND I THINK THAT -- I THINK THAT HIS COMMUNICATION AND FOCUS IS RELEVANT.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: I CAN IMAGINE WHERE THE PERIOD GOES BEYOND THE DATE OF THE INVESTMENT, ACTIONS OF INVESTORS AFTER THEIR INVESTMENT WOULD BE RELEVANT. MY ARGUMENT IS NOT THAT AN INVESTOR'S ACTIONS BEYOND THE DATE OF INVESTMENT COULD NEVER BE RELEVANT. THESE THREE EMAILS ARE NOT RELEVANT. THESE THREE EMAILS DO NOT SUGGEST WHAT THE DEFENSE BELIEVES THAT THEY DO. THE CONCEPT CAN BE INQUIRED INTO THROUGH A QUESTION. IN FACT, I THINK THE QUESTION FOR SOME HAS ALREADY BEEN ASKED WHETHER INTRODUCTIONS WERE MADE BETWEEN MS. HOLMES AND MS. WALTON. I MAY BE WRONG ABOUT THAT. THE FACT HAS ALREADY BEEN ESTABLISHED. AS THE COURT NOTED, MR. WADE CAN CERTAINLY ASK QUESTIONS ABOUT THAT. I DO NOT SEE THE RELEVANCE OF THE DOCUMENTS.
JUDGE DAVILA: ANYTHING FURTHER?
JUDGE DAVILA: I'M GOING TO ALLOW YOU TO INQUIRE AND YOU CAN ASK, DID YOU SAY FLATTERING THINGS IN REGARDS TO YOUR INTRODUCTION, AND THAT TYPE OF THING. BUT I THINK THE EMAILS, THE DATES AND THINGS, I THINK IT GOES TOO FAR. I THINK YOU CAN ACCOMPLISH WHAT YOU SEEK TO ACCOMPLISH WITHOUT THE ACTUAL DOCUMENT GOING IN, AND I JUST DON'T SEE THE RELEVANCE FOR THAT. SO I'LL SUSTAIN THE OBJECTION, PARDON ME, AS TO 168, 138, AND 139. I WILL PERMIT YOU, THOUGH, TO MAKE INQUIRY ON THAT. NOW, TIMING IS PROBLEM. YOU KNOW, WE SAID YESTERDAY WE WERE GOING TO FINISH THIS WITNESS. YOU'VE HAD HIM ALL DAY AND NOW THE GOVERNMENT HAS 12 MINUTES TO DO A REDIRECT. YOU KNOW, I DON'T KNOW IF THAT WAS STRATEGIC OR WHAT THAT WAS. BUT, YOU KNOW, IT'S JUST NOT FAIR.
MR. WADE: YOUR HONOR, I APOLOGIZE. THERE WERE A COUPLE OF THINGS THAT BLED INTO OUR TIME TODAY THAT CUT US A LITTLE BIT WHERE WE GOT STARTED A LITTLE BIT SHORT AND THERE WERE A COUPLE OF CONTINUANCES. AND I'LL REQUEST, TOO -- I BELIEVE AT THE TIME I MADE THAT STATEMENT, I THOUGHT WE WERE GOING UNTIL 4:00 O'CLOCK TODAY, AND SO I TAKE RESPONSIBILITY FOR THAT. AT THE BREAK, I'LL TELL THE COURT, I CUT ABOUT EIGHT DOCUMENTS THAT I WAS PLANNING TO PUT IN TO TRY AND GET IT FORWARD. I WAS SURPRISED THAT THESE DOCUMENTS GOT OBJECTIONS, BUT I'LL ASK THREE QUICK QUESTIONS AND PASS HIM TO THE GOVERNMENT.
JUDGE DAVILA: OKAY. THAT WILL FULFILL YOUR NEEDS FOR YOUR CROSS-EXAMINATION?
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU.
MR. SCHENK: THANK YOU.
(END OF DISCUSSION AT SIDE-BAR.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. WE ARE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT AGAIN. MR. MOSLEY IS ON THE STAND. I'M GOING TO SUSTAIN THE OBJECTIONS AS TO THE ADMISSION OF THE DOCUMENTS.
JUDGE DAVILA: YES.
BY MR. WADE:
MR. WADE: MR. MOSLEY, JUST A COUPLE OF QUICK QUESTIONS. DO YOU RECALL THAT YOU PROVIDED AN INTRODUCTION TO MS. HOLMES -- THAT YOU PROVIDED MR. SLACK WITH AN INTRODUCTION TO MS. HOLMES IN LATE FALL OF 2014?
DANIEL MOSLEY: I THINK I DID PROVIDE AN INTRODUCTION AT THE REQUEST OF DR. KISSINGER.
DANIEL MOSLEY: I DON'T THINK I EVER MET HANK SLACK AT THE TIME.
MR. WADE: FAIR ENOUGH. AND DO YOU ALSO RECALL IN THAT TIME PERIOD THAT YOU PROVIDED AN INTRODUCTION TO MR. OHANA?
DANIEL MOSLEY: I BELIEVE I DID, ONCE AGAIN, AT THE REQUEST OF DR. KISSINGER, I THINK WHO CONTACTED JOHN ELKANN.
DANIEL MOSLEY: YES.
DANIEL MOSLEY: YES, SHE WAS.
MR. WADE: AND DO YOU RECALL PROVIDING AN INTRODUCTION TO FACILITATING A CONNECTION BETWEEN MS. HOLMES AND MS. WALTON?
DANIEL MOSLEY: YEAH, I THINK I SENT AN EMAIL SUGGESTING THAT THEY OUGHT TO FIND A TIME TO GET TOGETHER AND TALK.
DANIEL MOSLEY: ABSOLUTELY.
JUDGE DAVILA: ALL RIGHT. REDIRECT?
MR. SCHENK: YES. THANK YOU.
REDIRECT EXAMINATION BY MR. SCHENK:
MR. SCHENK: GOOD AFTERNOON, MR. MOSLEY.
DANIEL MOSLEY: GOOD AFTERNOON.
MR. SCHENK: I JUST HAVE A COUPLE OF QUESTIONS. I WANT TO FOLLOW UP ON SOME TOPICS THAT YOU DISCUSSED WITH MR. WADE, IF THAT WOULD BE OKAY.
DANIEL MOSLEY: ABSOLUTELY.
MR. SCHENK: THERE WERE MANY QUESTIONS WHERE MR. WADE ASKED YOU IF YOU UNDERSTOOD THAT A STATEMENT THAT MS. HOLMES WAS MAKING, OR THE PURPOSE OF A MEETING WAS FOR MS. HOLMES TO COMMUNICATE HER VISION. MR. WADE USED THE WORD "VISION" QUITE OFTEN IN CERTAIN INSTANCES WHERE MS. HOLMES WOULD COMMUNICATE HER VISION. DO YOU RECALL THOSE QUESTIONS, AT LEAST GENERALLY?
DANIEL MOSLEY: I DO YES, GENERALLY.
MR. SCHENK: AND I WANT TO BE SPECIFIC WITH YOU RIGHT NOW.
DANIEL MOSLEY: RIGHT.
MR. SCHENK: AND I WANT TO ASK YOU SOME QUESTIONS ABOUT CERTAIN TOPICS, WHEN THEY WERE COMMUNICATED TO YOU BY MS. HOLMES EITHER IN A MEETING, ON THE PHONE, OR IN WRITTEN MATERIAL, WERE VISION AS OPPOSED TO A CURRENT CAPABILITY OF THE TECHNOLOGY. DO YOU UNDERSTAND THAT DISTINCTION?
DANIEL MOSLEY: I DO.
MR. SCHENK: WHEN MS. HOLMES COMMUNICATED TO YOU, OR WHEN YOU REACHED THE CONCLUSION THAT THERANOS COULD PERFORM A VAST ARRAY OF TESTS ON FINGERSTICK, DID YOU THINK THAT THAT WAS MS. HOLMES'S VISION OR DID YOU THINK THAT THAT WAS A CURRENT CAPABILITY?
MR. WADE: YOUR HONOR, JUST OBJECTION TO THE FORM AS TO WHETHER IT WAS SOMETHING THAT HE LEARNED OR WHETHER IT WAS SOMETHING THAT SHE SAID. I THINK HE HAD A COMPOUND QUESTION.
JUDGE DAVILA: DO YOU WANT TO -- MAYBE YOU SHOULD CLARIFY JUST SO MR. MOSLEY CAPTURES A COMPLETE UNDERSTANDING OF THE QUESTION.
MR. SCHENK: SURE.
MR. SCHENK: DO YOU RECALL UNDERSTANDING AND WRITING IN YOUR OUTLINE AT ONE POINT THAT THERANOS COULD PERFORM A VAST ARRAY OF TESTS? DO YOU RECALL THAT?
DANIEL MOSLEY: I DO.
MR. SCHENK: DID YOU UNDERSTAND THAT THAT WAS A CURRENT CAPABILITY?
DANIEL MOSLEY: I DID.
MR. SCHENK: DID YOU GAIN THAT UNDERSTANDING FROM MS. HOLMES?
DANIEL MOSLEY: I THINK I MAINLY GAINED THAT UNDERSTANDING FROM THE MATERIALS --
MR. SCHENK: OKAY.
DANIEL MOSLEY: -- THAT I RECEIVED.
MR. SCHENK: FROM THE WRITTEN MATERIALS, THE BINDERS THAT WE TALKED ABOUT?
DANIEL MOSLEY: THAT IS CORRECT.
MR. SCHENK: DID YOU HAVE AN UNDERSTANDING, BEFORE YOU INVESTED $6 MILLION, THAT THERANOS HAD THE ABILITY TO PROVIDE ACCURATE BLOOD TESTS?
DANIEL MOSLEY: YES, I BELIEVED THAT.
MR. SCHENK: DID YOU THINK THAT WAS A CURRENT CAPABILITY OR THAT WAS MS. HOLMES'S VISION?
DANIEL MOSLEY: I BELIEVED THAT WAS A CURRENT CAPABILITY.
MR. SCHENK: AND WHERE DID THAT UNDERSTANDING COME FROM?
DANIEL MOSLEY: I WOULD SAY PRIMARILY FROM THE MATERIALS.
MR. SCHENK: OKAY. DID YOU HAVE AN UNDERSTANDING, BEFORE YOU INVESTED, THAT THERANOS HAD A RELATIONSHIP -- AND I'LL USE THE WORD "HEALTHY" -- A HEALTHY RELATIONSHIP WITH WALGREENS? DID YOU HAVE THAT UNDERSTANDING?
DANIEL MOSLEY: I BELIEVE I THOUGHT THAT THEY HAD A HEALTHY RELATIONSHIP.
MR. SCHENK: AND DID YOU BELIEVE THAT THAT WAS A CURRENT STATEMENT REGARDING THE RELATIONSHIP, OR WAS THAT MS. HOLMES'S VISION?
DANIEL MOSLEY: I THOUGHT THAT WAS CURRENT.
MR. SCHENK: AND WHERE DID YOU GET THAT UNDERSTANDING FROM?
DANIEL MOSLEY: PRINCIPALLY FROM THE MATERIALS. MAYBE THERE WAS ALSO A REFERENCE IN THAT "FORBES" ARTICLE.
MR. SCHENK: DID YOU MEAN "FORTUNE"?
DANIEL MOSLEY: THE "FORTUNE" ARTICLE THAT WAS A QUOTE FROM -- AND I'M SURE I READ THAT.
MR. SCHENK: OKAY.
DANIEL MOSLEY: SO IT COULD HAVE COME FROM SOME NUMBER OF SOURCES.
MR. SCHENK: WHEN -- BEFORE YOU MADE THE DECISION TO INVEST, DID YOU THINK THAT CURRENTLY THERANOS HAD MEANINGFUL REVENUE?
DANIEL MOSLEY: I DID.
MR. SCHENK: AND WAS THAT DIFFERENT THAN MS. HOLMES HAD A VISION TO HAVE REVENUE?
DANIEL MOSLEY: YES, I DID.
MR. SCHENK: AND WHERE DID YOU GET THAT UNDERSTANDING FROM?
DANIEL MOSLEY: AND I THINK THAT, ONCE AGAIN, CAME PRIMARILY FROM THE MATERIALS THAT HAD A 2014 INCOME STATEMENT.
MR. SCHENK: WHO SENT YOU THESE MATERIALS WE'VE BEEN REFERRING TO?
DANIEL MOSLEY: ELIZABETH DID.
MR. SCHENK: BEFORE YOU MADE THE DECISION TO INVEST, DID YOU HAVE THE UNDERSTANDING THAT THERANOS ELIMINATED THE NEED FOR VIALS OF BLOOD?
DANIEL MOSLEY: I BELIEVE THEY WERE USING THE FINGERSTICK, WHICH DID NOT REQUIRE VIALS OF BLOOD. IT REQUIRED A VERY SMALL SAMPLE.
MR. SCHENK: WAS THAT YOUR UNDERSTANDING OF ITS CURRENT CAPABILITY OR WAS THAT MS. HOLMES'S VISION?
DANIEL MOSLEY: THAT WAS MY UNDERSTANDING OF THE CURRENT CAPABILITY.
MR. SCHENK: AND WHERE DID YOU GET THAT UNDERSTANDING FROM?
DANIEL MOSLEY: THAT WAS PROBABLY A COMBINATION FROM TALKING TO ELIZABETH AND THE MATERIALS.
MR. SCHENK: BEFORE YOU DECIDED TO INVEST IN THERANOS, DID YOU HAVE AN UNDERSTANDING ABOUT WHETHER THERANOS USED ITS OWN TECHNOLOGY, ITS OWN DEVICES TO TEST THE BLOOD?
DANIEL MOSLEY: I BELIEVE THAT IT WAS USING ITS OWN DEVICES.
MR. SCHENK: WAS THAT A CURRENT CAPABILITY OR WAS THAT MS. HOLMES'S VISION?
DANIEL MOSLEY: I BELIEVED IT WAS A CURRENT CAPABILITY.
MR. SCHENK: AND WHERE DID YOU GET THAT UNDERSTANDING?
DANIEL MOSLEY: I THINK FROM A COMBINATION OF TALKING WITH ELIZABETH AND FROM THE MATERIALS.
MR. SCHENK: BEFORE YOU DECIDED TO INVEST, DID YOU THINK THAT PFIZER HAD AUTHORED A GLOWING REPORT REGARDING THE THERANOS TECHNOLOGY?
DANIEL MOSLEY: I DID.
MR. SCHENK: AND DID YOU THINK THAT MS. HOLMES'S HAD A VISION THAT ONE DAY PFIZER WOULD WRITE SOMETHING GOOD ABOUT THERANOS, OR THAT WAS CURRENT, THAT THAT HAD HAPPENED?
DANIEL MOSLEY: I READ THAT REPORT AS A STUDY, A REPORT AND A STUDY THAT HAD ALREADY OCCURRED.
MR. SCHENK: MR. WADE ASKED YOU SOME QUESTIONS ABOUT A GROUP OF INDIVIDUALS. I'M NOT GOING TO GO THROUGH ALL OF THE NAMES, BUT SOME WERE YOUR CLIENTS AND SOME WERE INDIVIDUALS THAT DR. KISSINGER ASKED YOU TO MAKE INTRODUCTIONS?
DANIEL MOSLEY: THAT'S CORRECT.
MR. SCHENK: AND DO YOU RECALL THIS GROUP OF INDIVIDUALS?
DANIEL MOSLEY: I DO.
MR. SCHENK: DID YOU ENCOURAGE ANY OF THEM TO INVEST IN THERANOS?
DANIEL MOSLEY: NO, I DIDN'T.
MR. SCHENK: A MOMENT AGO WE SAW A DOCUMENT, AND IN THE DOCUMENT I THINK IT HAD THE PHRASE "RECOMMENDATION" OR THAT YOU RECOMMENDED CLIENTS. DO YOU RECALL THAT DOCUMENT? IT WAS --
DANIEL MOSLEY: I DO.
MR. SCHENK: -- AN EMAIL BETWEEN YOU AND MR. BOIES?
DANIEL MOSLEY: YES, I BELIEVE IT WAS AN EMAIL BETWEEN DAVID BOIES, OR CHRIS BOIES OR WHOEVER, AND MYSELF, AND IT DID HAVE THAT REFERENCE TO IT IN IT.
MR. SCHENK: EXPLAIN THAT TO ME. YOU TOLD ME THAT YOU DIDN'T ENCOURAGE ANYONE IN THIS GROUP TO INVEST IN LIGHT OF THAT SENTENCE.
DANIEL MOSLEY: I THINK IT WAS JUST LOOSE LANGUAGE. I MEAN, I THINK IT WAS REFERRING TO THE CLIENTS I HAD INTRODUCED TO ELIZABETH OR WHO HAD BEEN, YOU KNOW, REALLY THE CLIENTS THAT I HAD INTRODUCED TO ELIZABETH.
MR. SCHENK: OKAY. SO THEN TO BE CLEAR ONE LAST TIME, DID YOU ENCOURAGE ANY OF THE INDIVIDUALS THAT YOU -- THAT WE ARE TALKING ABOUT RIGHT NOW, YOUR CLIENTS AND THE PEOPLE THAT DR. KISSINGER ASKED YOU TO MAKE INTRODUCTIONS TO MS. HOLMES, DID YOU ENCOURAGE ANY OF THEM TO INVEST IN THERANOS?
DANIEL MOSLEY: NO, I DIDN'T. THESE ARE HIGHLY SOPHISTICATED PARTIES WITH LARGE INVESTMENT STAFFS IN ALMOST EVERY CASE -- I'M SORRY. THESE WERE SOPHISTICATED CLIENTS THAT HAD SIGNIFICANT INVESTMENT STAFFS THAT THEY USED TO VET INVESTMENTS.
MR. SCHENK: THANK YOU. THANK YOU, YOUR HONOR. NO FURTHER QUESTIONS.
JUDGE DAVILA: MR. WADE?
JUDGE DAVILA: THANK YOU. MAY THIS WITNESS BE EXCUSED?
JUDGE DAVILA: THANK YOU. YOU MAY BE EXCUSED.
DANIEL MOSLEY: THANK YOU. I APPRECIATE IT.
JUDGE DAVILA: I THINK THAT CONCLUDES OUR DAY AND EVENING, LADIES AND GENTLEMEN. WE'LL TAKE OUR EVENING BREAK NOW. PLEASE REMEMBER TOMORROW WE'LL BEGIN AT 9:30, 9:30. REMIND ME, MS. KRATZMANN, TOMORROW ARE WE GOING UNTIL 4:00?
COURT CLERK: YES.
JUDGE DAVILA: SO TOMORROW IS A 4:00 O'CLOCK DAY. SO BEFORE YOU LEAVE, PLEASE REMEMBER THE ADMONITION. PLEASE AVOID READING, COMING INTO CONTACT, SPEAKING WITH ANYONE, DOING ANY RESEARCH OR FORMING ANY OPINION ABOUT ANYTHING THAT YOU'VE HEARD SO FAR IN THIS CASE. I'LL ASK YOU TOMORROW MORNING FIRST IF YOU'VE HAD A PLEASANT EVENING, AND THEN I'LL ASK YOU IF YOU HAD CAUSE TO COME ACROSS ANY INFORMATION. SO WE'LL BE IN RECESS. HAVE A GOOD EVENING. THANK YOU.
(JURY OUT AT 2:55 P.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT FOR THE DAY. MR. MOSLEY HAS LEFT THE COURTROOM. BEFORE WE ADJOURN, ANYTHING FURTHER BEFORE WE ADJOURN? MR. SCHENK?
JUDGE DAVILA: ALL RIGHT. THANK YOU. HAVE A GOOD EVENING. MR. SCHENK, MAY I SEE YOU AND MR. WADE FOR JUST A MOMENT -- I'M SORRY. MR. DOWNEY.
(DISCUSSION OFF THE RECORD.)
JUDGE DAVILA: MR. DOWNEY, MR. SCHENK, CAN I SEE YOU FOR A SECOND? WE'RE OTHERWISE IN RECESS FOR THE DAY. THANK YOU VERY MUCH.
(COURT ADJOURNED AT 2:56 P.M.)